Acceleration

Facing the Turncoats. An Incredible True Story Exclusively on LIT

The significant and distressing difference is the Burkes battle is not just with the opposing parties, but with the judicial machinery itself.
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RESPONSE TO HARASSMENT MOTIONS FOR JUDGMENT ON THE PLEADINGS BY HOPKINS/PHH/OCWEN (“DEFENDANTS”)

NOV 14, 2021 | REPUBLISHED BY LIT: NOV 20, 2021

A Fraud Perpetrated by Officers of the Court

“The significant and distressing difference, however, is that the Burkes
battle is not just with the opposing parties, but with the judicial machinery
itself and the personalities therein.”

See; Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989);

“The narrow concept should “embrace only the species of fraud which does or attempts to, defile the court itself, or is a fraud perpetrated by officers of the court so that the judicial machinery cannot perform in the usual manner its impartial task of adjudging cases that are presented for adjudication.”

Kerwit Medical Products, 616 F.2d at 837

(quoting7 Moore, Federal Practice ¶ 60.33 at 511 (1971 ed.)).”

TO THE HONORABLE JUDGE: Defendants aver in their premature motion(s); “Plaintiffs’ action fails to state a legally viable claim and must be dismissed with prejudice.” (e.g., Doc. 19, No. 8). Defendants argument fails.

It’s a Lawsuit Which Does Not Require Defendants Input, Because They Do Not Have Sufficient Knowledge nor Information to Rebut the Plaintiffs Claims

In the latest response to the Plaintiffs amended complaint, Defendants repetitively state ‘they are without sufficient knowledge…’ and ‘without

[1] Plaintiffs have elected to redact most of the cited paragraph due to its irreverence.

[2] Rendon v. Bank of America, N.A. (5:12-cv-00154), District Court, W.D. Texas, Doc. 16, Dec. 17, 2021, Judge Xavier Rodriguez (“This Court has warned Bank of America and other mortgagees that their continued practice of filing Rule 12 motions rather than summary judgment motions merely leads to delay, motions to amend pleadings and additional Rule 12 motions, and other procedural complexity.”).

sufficient information…’ or ‘unclear…” to respond. VALENZUELA v. KEHL, No. 3:05-CV-1764-BF (B), at *6 (N.D. Tex. Aug. 23, 2006) (“The motion for a judgment on the pleadings only has utility when all material allegations of fact are admitted in the pleadings and only questions of law remain.”).

Yet, Defendants contradict these responses by claiming there is sufficient information to support their baseless motion for judgment on the pleadings. That is absurd. These motions have been brought in bad faith.

This civil action does not involve the ‘merits’ of any prior lawsuits, nor does it require the constant conclusory and/or irrelevant diatribe from the named Defendants. They completely fail the test(s) in the heightened legal standard required to file 12(c) motion(s); Priester v. Long Beach Mortg. Co.,

[3] For example; Doc. 16, p. 5, No.’s 6, 8, 9, 10,  11, 29, 31, 32, 33, 37, 65, 66, 68, 69. 70, 71, 79(17), 84, 87. 91, 106, and 107.

Civil Action No. 4:16-CV-449 generally, and specifically at *8 (E.D. Tex. Mar. 3, 2017) (“Rule 12(c) motions are “disfavored and rarely granted” in this Circuit. Boyd v. Dallas Indep. Sch. Dist., No. 3:08-CV-0426-M (BF), 2009 WL 159243, at *1 (N.D. Tex. Jan. 21, 2009) (Lynn, J.) (citing Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981)); see also Hairston v. Geren, No. C-08-382, 2009 WL 2207181, at * 3 (S.D. Tex. July 21, 2009) (“[A] motion to dismiss under Rule 12(c) is disfavored and rarely granted.”). ”).

It’s a Lawsuit Directed at the Judicial Machinery Itself

Plaintiffs did not request a jury trial, as the facts of the case are based on a question of law. As sensitive as it may be, the complaint was directed

[4] Eilert v. Turner, CIVIL ACTION No. H-13-3758, at *6 (S.D. Tex. Apr. 14, 2016) (“”[P]arties may not stipulate to the legal conclusions to be reached by the court. . . . Issues of law are the province of courts, not of parties to a lawsuit, individuals whose legal conclusions may be tainted by self interest.”).

‘at the judicial machinery itself’. It appears from Plaintiffs legal research this matter is also “one of first impression”.

Certainly, Plaintiffs could find no such case where a Clerk of a Court has been caught impersonating plaintiffs in the entire history of nationwide judicial opinions. And furthermore, committing such blatant and unlawful acts wherein those fraudulent acts were condoned and ultimately approved by the Circuit Court itself, despite formal objection including affidavits from the Burkes. Without doubt, the Courts judgment/mandate is void ab initio.

The Plaintiffs have submitted a case management plan to the court (Doc. 22) indicating discovery and depositions of the staff and/or Circuit Judges named at the Court of Appeals for the Fifth Circuit is anticipated, to proof-up the Plaintiffs already incriminating evidence before this court or allow the Fifth Circuit to admit to its own error that the judgment is void.

See; Doe v. McKesson, 945 F.3d 818, 835 (5th Cir. 2019) (“I originally agreed with denying Mckesson’s First Amendment defense. But I have had a judicial change of heart. Further reflection has led me to see this case differently, as explained below. Admittedly, judges aren’t naturals at backtracking or about-facing. But I do so forthrightly. Consistency is a cardinal judicial virtue, but not the only virtue. In my judgment, earnest rethinking should underscore, rather than undermine, faith in the judicial process. As Justice Frankfurter elegantly put it 70 years ago, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.””).

Clerk Christina Gardner Submitted a ‘Textual’ OPPOSED Motion Without Defendants Knowledge

It is evident from Defendants responses Clerk Gardner (the imposter), never discussed the OPPOSED motion for reconsideration with Defendants and so they were not privy to the surrounding events which control this lawsuit.

Unquestionably, no Defendants were on the phone call with Gardner, nor did Gardner mention OPPOSING parties or counsel at any time during the phone conversation being invited to discuss this OPPOSED motion, or that Defendants knew she was filing an OPPOSED motion unlawfully.

The Subsequent Void Acts of The Circuit Court and Panel Judges

This lawsuit pertains to the actions of the officers of the court at the Court of Appeals for the Fifth Circuit and Circuit Judges. Specifically, Clerk Christina Gardner impersonating the Plaintiffs , filing an OPPOSED motion for reconsideration and backdating the same; Clerk Rebecca Leto also backdating documents and the other shenanigans by other staff (for

[5] Williams v. Jones, CIVIL ACTION No. H-15-0775, at *2 (S.D. Tex. Oct. 23, 2015) (“The pro se litigant must sign every document filed with the court. ”).

example, Clerk Jan Wynne) as detailed with particularity, including relevant citations, in the amended complaint.

Inappropriately, the Fifth Circuit panel would act on the void and fraudulent OPPOSED motion for reconsideration as ‘textually’ submitted by their own staff member and Deputy Clerk Gardner (impersonating the Burkes) including striking the Plaintiffs Petition for Rehearing and issuing the judgment/mandate(s).

Undeniably, Circuit Judges should not have relied upon a fraudulent and void motion as submitted by a Deputy Clerk and not the Plaintiffs. The rules are strict and clear. To do so is prohibited in law, considering what is at stake for the elder Plaintiffs, their homestead.

[6] In re Hector M. Roman, 601 F.3d 189, 196 (2d Cir. 2010) (“We also are disturbed by Roman’s mis-representations to this Court when he (a) permitted others to sign his name to pleadings that he failed to review prior to their filing in this Court, and (b) permitted materially inaccurate information to be submitted to the Court in those pleadings. Although Roman stated that he “wasn’t very aware of what was going on,” Hearing Tr. at 27:25, we believe that he either knew of the misrepresentations, or was guilty of reckless disregard, since he knew that the cases existed and knew that they could not proceed to briefing and decision without the input, and signature, of counsel of record. See Fed.R.App.P. 32(d) (“Every brief, motion, or other paper filed with the court must be signed by the party filing the paper or, if the party is represented, by one of the party’s attorneys.”).”)

As a result, all acts performed after the fraudulence by Gardner, when the court was formally on notice by the Plaintiffs formal objections in compliant motion(s), can only be deemed void. This includes issuance of the judgment and mandate(s) to this court.

[7] Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267; CORRECT OPINION; RESPONSE TO STRIKE CLERKS’ DOCKET ENTRY DATED 9TH JULY, 2021 AND OTHER RELIEF; citing Ryland v. Shapiro, 708 F.2d 967, 971 (5th Cir. 1983).

Plaintiffs do not accuse Defendants, nor does it involve any acts by the Defendants.

It was purely the unlawful actions of those persons, as identified at the Court of Appeals for the Fifth Circuit, who created this “ClerkGate Scandal” which has resulted in what must be a very embarrassing civil action for the judiciary.

For the reasons provided in this detailed response, Defendants harassing and premature 12( c) motions should be DENIED.

What’s the Plaintiffs Complaint About?

The gravamen of the Plaintiffs complaint questions the jurisdiction of the Court of Appeals for the Fifth Circuit to render judgment, based on Fifth

[8] McCaig v. Wells Fargo Bank (Texas), N.A. (2:11-cv-00351), District Court, S.D. Texas, Doc. 29, Apr. 22, 2013, Judge Hilda G. Tagle. (“This is the Defendant’s fifth attempt to summarily terminate this action… Presentation of obviously—and admittedly—repetitious arguments is harassing to the parties in this case and unnecessarily increases the cost of litigation in violation of Fed. R. Civ. P. 11…”).

Circuit Clerk Christina Gardner’s impersonation of the Plaintiffs in filing an OPPOSED, backdated , Motion for Reconsideration, and which the panel relied upon – despite formal objection, and as ratified by Plaintiffs in the Complaint in the form of unsworn affidavits (Doc. 12, Exhibits I and J) – in order to;

(a) Strike the Petition for Rehearing;

(b) issue the Judgment and Mandate(s) on August 4, 2021,

and;

(c) which incorrectly disposed of pending motion(s).

The repercussions of the unconstitutional and fraudulent [void] judgment(s) and potential injuries which will be sustained by the elder [and

[9] See; Doc. 12,p.18, p.25,p.44, p.49, p.58-59, Exhibit D.

[10] Defendants attempt to discount the ‘unsworn affidavits’ in their amended responses, e.g., Doc. 16, p.7, No. 45 stating in part “they are not proper affidavits”, but the law supports the Plaintiffs, see; Stewart v. Guzman, 555 F. App’x 425, 12 (5th Cir. 2014).

infirm] Plaintiffs if the judgment(s) and mandate(s) were to stand is unconscionable, as documented in the operative complaint.

At this early stage, and as the law confirms, Plaintiffs complaint more than sufficiently pleads the conspiracy and fraud by the Fifth Circuit. For instance, Plaintiffs present irrefutable [but not necessary at this stage] evidence showing the Judgment and Mandate(s) are clearly void.

[11] See Doc. 12, p. 21; Cadle Co. v. Moore (In re Moore), 739 F.3d 724, 733 n.15 (5th Cir. 2014); Doc. 12, p. 29; Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989)(5th Cir. 2014), citing; Kerwit Medical Products, 616 F.2d at 837 (quoting 7 Moore, Federal Practice ¶ 60.33 at 511 (1971 ed.).

[12] Priester v. Long Beach Mortg. Co., Civil Action No. 4:16-CV-449, at *5 (E.D. Tex. Mar. 3, 2017) (“the inquiry at this stage focuses on the allegations . . . and not on whether the plaintiff actually has sufficient evidence to succeed on the merits[,]””).

For example, in reviewing Federal Rules of Civil Procedure 7 and Fed.R.App.P. 32(d) , the answer is clear. A Clerk cannot impersonate parties and file backdated , OPPOSED motion(s) under any circumstances.

To do so is in violation of the rules. Doc. 12, p.24; Watkins v. Hobbs, 5:11CV00217 JMM, at *1 n.1 (E.D. Ark. Feb. 16, 2012).

The law does not allow any officer of the court to (i) file a motion as if they are a party to the proceedings; (ii) then for the judges of the circuit court

[13] See; Doc. 12, p.18, p.22, p.54, p.61.

[14] In re Hector M. Roman, 601 F.3d 189, 196 (2d Cir. 2010).

[15] See; Doc. 12, p.58-59; Goode v. Winkler, 252 F.3d 242, 245-46 (2d Cir. 2001).

[16] See; Doc. 12, p. 24; Coleman v. Creal, CIVIL ACTION No. 17-1493-P, at *7 (W.D.La. Jan. 26, 2021).

to rely and rule on the unlawful motion (over formal objections); (iii) and then release a judgment and/or mandate, declaring it valid. No, the law confirms, the judgment is void.

When is a Judgment Void?

See; In re Richardson, 252 S.W.3d 822, 826 (Tex.App. 2008) (“Generally speaking, a judgment is void when it is apparent that the court rendering judgment had no capacity to act. Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)).

When Did the Fifth Circuit Relinquish its Jurisdiction?

In This Case, The Fifth Circuit Lost Its Capacity to Act as Soon as The Panel Judges Relied Upon the Unlawful and

[17] See; Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980).

[18] See; Romero-Rodriguez v. Gonzales, 488 F.3d 672, 677-78 (5th Cir. 2007).

Void OPPOSED Motion for Reconsideration as Submitted by Clerk Christina Gardner

More specifically, when a trial judge’s actions exceed the scope of his assignment, his acts are without authority and his actions are void. Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991)”); Sotelo v. Scherr, 242 S.W.3d 823, 830 (Tex. App. 2007) (“A judgment is void, rather than voidable, only when it is apparent that the court had no jurisdiction over the subject matter or parties to the suit or no capacity to act. Browning, 165 S.W.3d at 346.”);

The Void Judgment Cannot Be Classified a Clerical Misprision

See; Romero-Rodriguez v. Gonzales, 488 F.3d 672, 677-78 (5th Cir. 2007) (“ If a court does not render judgment, or renders one which is imperfect or improper, it has no power to remedy any of these errors or omissions by treating them as clerical misprisions.”);

No Immunity is Available in this Case for Judges or Clerk(s)

Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980) (“No immunity extends to clerks of court acting outside the scope of their jurisdiction, as is true for judges. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 343, 20 L.Ed. 646 (1872).”).

A void judgment is in legal effect no judgment

See Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 343, 20 L.Ed. 646 (1872).”); Schmidt v. Rodriguez (In re Rodriguez), CASE NO: 12-07018, at *17 (Bankr. S.D. Tex. June 15, 2013) (“Void judgments are legal nullities that neither confer nor deprive anyone of rights. Roccaforte v. Jefferson Cty, 341 S.W.3d 919, 922 (Tex. 2011) (quoting Lindsay v. Jaffray, 55 Tex. 626 (Tex. 1881)) (“A void judgment is in legal effect no judgment.”). ”);

Collateral Attack and Void Judgments

See Doc. 12, p.32-33; Citing and implementing; “The Value of The Distinction Between Direct and Collateral Attacks on Judgments, The Yale Law Journal, Vol. 66: 526. Raising a new civil action in this Federal Court for the purpose of attacking a void judgment, the Plaintiffs Complaint is valid.

Usurpation of Judicial Power(s)

Plaintiffs have responded to the collateral attack and jurisdictional questions which one would ‘traditionally’ be required to overcome, e.g., if Plaintiffs were contesting an error on the merits of a judgment.

Defendants have applied such a scenario to Plaintiffs case, to try and convince this court that somehow the judgment is valid rather than void, e.g., Doc. 19, p.8, No. 17.

However, that is not the case here, which is unique insofar as it involves the judicial machinery itself and includes several constitutional violations (discussed separately in this response and as presented in the operative complaint).

Plaintiffs allege usurpation of judicial power, which is distinctive when confirming a judgment is void. In re Abbott, 954 F.3d 772, 782 (5th Cir. 2020) (“Usurpation of judicial power occurs when courts act beyond their jurisdiction or fail to act when they have a duty to do so. Will v. United States , 389 U.S. 90, 95, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). But it also occurs in other situations.”).

[19] For example: Doc. 12, p.29; Wilson v. Johns-Manville Sales Corp., 873 F.2d 869, 872 (5th Cir. 1989); citing; Kerwit Medical Products, 616 F.2d at 837 (quoting 7 Moore, Federal Practice ¶ 60.33 at 511 (1971 ed.).

DEFENDANTS ARGUMENTS FAIL AS A MATTER OF LAW

Incorrigibly, Defendants have now filed three premature and harassing motions – including these two motions to dismiss the Plaintiffs meritorious case (styled as a 12 (c) Motion for Judgment on the Pleadings) with irrelevant and baseless arguments which fail as a matter of law.

The Plaintiffs complaint and response(s) not only meet the liberal standard to defeat these motions, but they also exceed the legal standard.; Hendrix v. Hartford Life Ins. Co., Civil Action No. 3:12-cv-2643-M, at *2 (N.D. Tex. Mar. 13, 2013).

[20] Doc No.’s 17-20 with responses; No.’s 21, 23 and 24.

[21] Thomas v. Prof’l Law Firm & Corp. of Barret, Daffin, Frappier, Turner & Engel L.P., CIVIL ACTION No. 4:13-cv-2481, at *4 (S.D. Tex. Aug. 19, 2014).

Defendants Motion Practice is Reprehensible

Defendants odious motion practice is well known to Plaintiffs. They always concentrate on making grossly false statements designed to inflict the most injury onto the law-abiding elder Plaintiffs.

They do so again here, by repeating the malevolent content of the ‘vexatious litigant’ motion, filed on the same day, October 12, 2021 (Doc. 17), purely for the purpose of harassment. This conflicts with the Dondi standard, adopted and implemented by this District Court .

[22] For example, see pro hac vice admission application, which every lawyer must read and sign, under the penalty of perjury; McCorvey v. Wade, No. 3:03CV1340-N, at *2 (N.D. Tex. June 19, 2003).

[23] In re Bradley, 495 B.R. 747 (Bankr. S.D. Tex. 2013); In re Stomberg, 487 B.R. 775, 811 n.39 (Bankr. S.D. Tex. 2013) (“In 2007, the District Judges of the Southern District of Texas voted to adopt these Guidelines for Professional Conduct…”).

After reviewing Defendants frivolous, inaccurate, and mendacious motions, the Plaintiffs now respond.

Defendants Arguments Are Futile

On Plaintiffs consolidated reading, Defendants motions suggests the following arguments;

(a) The judgment and mandate(s) in the two consolidated cases are valid, not void;

(b) “Plaintiffs’ remedy for disagreement with the Fifth Circuit, was to seek proper review in a timely petition for writ of certiorari to the United States Supreme Court.”;

(c) Collateral Attack on a Judgment Not Permitted;

(d) Res Judicata applies;

and

(e) Attorney Immunity applies to the Hopkins Defendants.

These arguments fail in law or are irrelevant as

(a) the judgment is clearly void as discussed in this response, the operative complaint (Doc. 12), and response to the vexatious litigant motion (Doc. 21/23);

(b) fails as a matter of law; Solomon, Lambert, Roth & Associates, Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App. 1995) (“Because a collateral attack does not seek rendition of a new judgment to correct the judgment under attack, but merely seeks to show that the original judgment is void, such an action may be brought in any court of general jurisdiction. Austin Indep. Sch. Dist., 495 S.W.2d at 881.”) and as referenced in (a);

(c) fails as a matter of law as referenced in (a);

(d) fails as a matter of law as referenced in (a); and furthermore, relying upon Federal Judge Truncale’s opinion in Riley and other persuasive citations presented.

Defendants claims the lawsuits against PHH/Ocwen and Hopkins are barred by res judicata. Yet, Hopkins knows this is false, especially considering Judge Truncale’s opinion in The Bank of New York Mellon v. Riley (1:19-cv-00279), District Court, E.D. Texas, Doc. 33, p.7-8, Feb. 12, 2020 in relation to ‘res judicata’ and where Counsel for the Bank is Hopkins.

The judge denied res judicata for essentially the same arguments presented by the Plaintiffs in response to Hopkins ‘vexatious litigants’ motion (Docs. 21/23). The current lawsuit may have the same parties listed and refer to ‘the same parcel of property’, but any perceived similarity ends there.

[24] In the matter of BONYM v. Riley, Mark Hopkins called out the pro se litigant(s) for withholding evidence in 2018 in Riley’s case. Hopkins refers to Riley’s silence as ‘dishonest’. This is ironic and extremely agonizing, considering Hopkins statement is made the following year after Mark Hopkins admitted to the same act in this court, namely remaining silent and withholding evidence (the mortgage loan file/closing file from the Burkes); Deutsche Bank National Trust Company v. Burke, 4:11-cv-01658, SDTX, Doc. 126, P. 13, TRANSCRIPT re: STATUS CONFERENCE held on 1-27-17 before Magistrate Judge Stephen W. Smith.

What is known and irrefutable is Plaintiffs claims and arguments are ‘separate and distinct’.; Priester v. Long Beach Mortg. Co., Civil Action No. 4:16-CV-449, at *11 (E.D. Tex. Mar. 3, 2017) (“significant new facts that create new legal conditions may constitute a material change in circumstances giving rise to new claims not barred by res judicata. Wilson v. Lynaugh, 878 F.2d 846, 851 (5th Cir. 1989).”).

In this case, the Plaintiffs are not complaining directly against Hopkins nor PHH/Ocwen, but rather the ‘judicial machinery itself’. However, to obtain meaningful relief (void the judgment and mandate(s)), the civil action must name the same parties who have and/or will obtained benefit from this void judgment.

Defendants know this, but they have purposely pursued a deceptive claim of res judicata which distinctly fails in law. Both the Riley opinion (and where Hopkins was also counsel for the Bank) and the new 2018 lawsuits by the Plaintiffs were distinct from the prior lawsuit initiated by Deutsche Bank, and as such not barred by res judicata.

Additionally, “The Restatement of Judgments recognizes that there will be circumstances where a court’s determination of jurisdiction over the subject matter should not be given the effect of res judicata. Those circumstances exist when the “policy underlying the doctrine of res judicata is outweighed by the policy against permitting the court to act beyond its jurisdiction.”

The Restatement gives as an example a divorce decree entered by a justice of the peace without jurisdiction even though the defendant appeared and litigated the question of jurisdiction. RESTATEMENT, JUDGMENTS § 10, comment b at 60 (1942).

The Plaintiffs case obviously meets the Restatement of Judgments prerequisites, considering both lack of jurisdiction, fraud and usurpation applies. The judgment(s) from the Fifth Circuit are void.; (e) Attorney immunity is a ‘red herring’. It is inapplicable and irrelevant in this proceeding.

Defendants Have Failed to Address the Substance of the Complaint and Evidence

The Defendants fail to address the Plaintiffs amended Compaint earnestly. On the contrary, Plaintiffs provide additional commentary showing Defendants calculated strategy is always to create chaos, which will allow for a conclusory and biased interpretation of the facts in an attempt to overshadow the true facts, rules and laws which irrefutably support the Plaintiffs complaint:

[25] Johnson v. United States, 238 F.R.D. 199, 200 n.2 (W.D. Tex. 2006) (“A red herring is defined as ” an irrelevant legal or factual issue.” BLACK’S LAW DICTIONARY 1282 (7th ed.1999).”).

(a) Bad faith failure to waive service (Doc. 12, p.2-15); Hopkins repeatedly refused to respond to Plaintiffs requests to conference while on appeal in Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267, 5th Cir., Motion for Sanctions, Jul 8, 2021) (non-monetary sanctions request denied).(“Commencing the audit after the Burkes petition on Apr 13, 2021, the Burkes calculate they have submitted eight motions (on Apr 23, May 12, May 14, May 28, Jun 8, Jun 28, Jul 3, Jul 8, 2021). That’s 8 filings with zero replies from Hopkins.” And this is not the first time Hopkins has lied about conferring.”); Case 20-20209, Doc. 00515526917, 08/13/2020; (‘Appellants Motion for Reconsideration of Single Judge’s Order Dated 4th August, 2020’, reciting in part; “As explained in the Burkes denied motion in this appellate court, Hopkins signed a Certificate of Conference which was willfully untruthful as he claimed to have reached out to the Burkes regarding his firm’s prepared motion and received no response. This is a lie. Hopkins did not reach out to the Burkes. Furthermore, and ratifying the Burkes arguments, Hopkins offered no counter-defense nor answer to the Burkes motion. Hopkins remained silent as they had no legal defense. They were clearly guilty as charged.”).

(b) The Plaintiffs case law contradicts Defendants arguments, yet Defendants never attempted to rebuke Plaintiffs citations (Doc. 12, p.16-17).

(c) All of the Preamble Section; which outlines the core of the complaint, the events which happened during the period of the Petition for Rehearing, e.g., the conspiracy and fraudulence by officers of the court (5th Cir. Clerks) and judges, including case law (Doc. 12, p.17-28).

(d) The Facts; addressing judicial fraud, corruption by the judicial machinery itself, intrinsic and extrinsic fraud and why the Plaintiffs Complaint is valid, based on the Fifth Circuit’s void judgment(s)/mandate(s) (Doc. 12, p.28-33).

(e) Defendants waive any response to the majority of the Plaintiffs verifiable evidence and facts of the complaint and cited case law from Doc. 12, p.33-57.

(f) Defendants do not address the Violation of Due Process , including evidence of backdating and case law (Doc. 12, p.57-59).

[26] Fehlhaber v. Fehlhaber, 681 F.2d 1015, 1027 (5th Cir. 1982) (“a departure from established modes of procedure [can] render the judgment void,” Windsor, supra, 93 U.S. at 283, where the procedural defects are of sufficient magnitude to constitute a violation of due process, or, as sometimes more circularly put, where the defects are “so unfair as to deprive the . . . proceedings of vitality,” Eagles v. U.S. , 329 U.S. 304, 314, 67 S.Ct. 313, 319, 91 L.Ed. 308 (1946), or where the procedural irregularities are serious enough to be deemed “jurisdictional,” Yale v. National Indemnity Co., 602 F.2d 642, 644 (4th Cir. 1979); Recent Cases, 62 Harv.L.Rev. 1400, 1401 (1949). See generally Restatement of the Law of Judgments § 8 (1942).”).

Again, the unlawful actions of the Fifth Circuit Clerk(s) along with usurpation of judicial power, while on formal notice, by the Fifth Circuit judges, render the judgment and mandate(s) issued by the Fifth Circuit void.

(g) The Fourth Amendment and applying U.S. Supreme Court case Soldal v.Cook County, 506 U.S. 56, 62 (1992) in relation to the fact Defendants are set to benefit from the void motion which would allow them to seize, search and unlawfully purloin the Plaintiffs homestead in violation of the Fourth Amendment and contrary to precedent, namely all courts are bound to follow the rulings of the Supreme Court, as the highest court in the country (Doc. 12, p.60-62).

(h) The Fourteenth and Fifth Amendment (Doc. 12, p.62-63); Soldal v. Cook County, 506 U.S. 56, 70 (1992) (“Believing that the Soldals’ claim was more akin to a challenge against the deprivation of property without due process of law than against an unreasonable seizure, the court concluded that they should not be allowed to bring their suit under the guise of the Fourth Amendment. But we see no basis for doling out constitutional protections in such fashion. Certain wrongs affect more than a single right, and, accordingly, can implicate more than one of the Constitution’s commands. Where such multiple violations are alleged, we are not in the habit of identifying, as a preliminary matter, the claim’s “dominant” character. Rather, we examine each constitutional provision in turn.”); and citing; Littlefield v. Forney Independent School Dist, 268 F.3d 275, 287-88 (5th Cir. 2001); Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion) (quoting Washington v. Glucksberg, 521 U.S. 702, 719, 720, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997)) – Doc 12, p.63.

(i) The “Affirmative Defenses raised by Defendants” have been waived, namely ‘contributory negligence’ , ‘laches’ , ‘claim preclusion’ and issue preclusion’ (leaving only res judicata), ‘unclean hands’ . ‘Damages’ (No. 125) is only mentioned in an attorney immunity case citation on Doc. 19, p.14, but as explained, attorney immunity is a red herring and Defendants

[27] A word search of Doc. 19, for example, confirms not a single mention of  the word ‘contributory negligence’ or ‘negligence’ which is relevant to the affirmative defense.

[28]A word search of Doc. 19, for example, confirms not a single mention of  the word ‘laches’.

[29] A word search of Doc. 19, for example, confirms not a single mention of  the word ‘claim preclusion’.

[30] A word search of Doc. 19, for example, confirms not a single mention of  the word ‘issue preclusion’.

[31] A word search of Doc. 19, for example, confirms not a single mention of  the word ‘unclean hands’.

Hopkins reliance that the Plaintiffs claims are ‘barred’ also fails in law because Defendants are relying on the void judgment and wish to benefit from the unlawful judgment as shown in their responses; ‘lack of standing’ ; and finally No. 127 – the only frivolous filings subject to sanctions are the Defendants e.g., Doc. 16, p. 20, II Affirmative Defenses, Nos. 119-127.

The ‘failure to state a claim’ fails in law as discussed in the opening address of this response and the reasoning for stating “It’s not Ocwen or Hopkins Fault” is never addressed in Defendants motions (Doc. 12, p.64-69), because there is no possible argument.

Defendants have already admitted in their amended general denials that they did not have sufficient knowledge

[32] A word search of Doc. 19, for example, confirms not a single mention of  the word ‘standing’ or ‘lack of standing’.

or information to rebut the Plaintiffs claims, as discussed in the opening of this response.

(j) Count I, ‘The Fifth Circuit Judgment is Void’ (Doc. 12, p.69-71) and ‘The Court Has Not Correctly Disposed of The Pending Motion(s)’ (Doc. 12, p.72) is blanked.

(k) The evidence in Counts II and III is also blanked by Defendants (Doc. 12, p.73-74).

(l) Count IV, ‘Judicial Corruption Requires this New Case’ – with case law, also blanked (Doc. 12, p.75-76).

The Defendants general denials as per Docs. 15 and 16, submitted on the same day as the ‘vexatious litigant’ motion (Doc. 17), fair no better.

Rather than address the Plaintiffs arguments in their detailed and accurate complaint, Defendants, who are also Counsel for the non-bank, allow their personal animosity toward the elder, law-abiding citizens (Plaintiffs) and unbalanced emotions to pervade their harassing ‘motions’.

As meticulously itemized above and in this response, the Defendants have made no attempt to formally and legally answer the Plaintiffs Complaint and any arguments presented fail in law.

In summary, these three filings as submitted on October 12 (Docs. 15-17), along with the two judgment on the pleadings motions (“JOTP”) addressed herein, (Docs. 18 and 19) and subsequent reply to the ‘vexatious litigant’ motion (Doc. 23) have been submitted in bad faith and purely for the purposes of harassment.

It is an abuse of the judicial process and the Plaintiffs.

[33] See; Bondyopadhyay v. Bank of N.Y. Mellon, CIVIL ACTION No. H-20-1340 (S.D. Tex. Aug. 11, 2020) : Chief Judge Lee Rosenthal deny Vexatious Litigant with at least nine (9) foreclosure filings spanning eighteen years (18), including six since 2017 and with three (3) of those against BDF Law Group per Shelley Hopkins Motion to Dismiss (Bondyopadhyay v. Barrett Daffin Frapper Turner & Engel, LLP (4:20-cv-03064) District Court, S.D. Texas, (Doc.3, Motion to Dismiss, 17 Nov. 2020).

DEFENDANTS BACKGROUND AND HISTORY IS DISAVOWED

Whilst the full background is unnecessary in this current civil action, Defendants motions (consolidated as duplicative) stated;

“Through their extensive litigation, Plaintiffs have continued to reside in the Property without making payments since at least 2010.” (Doc. 19, No. 3); “Despite receiving the benefits of the Note, Joanna Burke stopped making payments on the loan.”(Doc. 19, No. 9).

These are knowingly false statements.

As such it warrants a response, although Plaintiffs reiterate to the parties and the court, this

[34] Defendants claim to know the Plaintiffs case history intimately.

The Plaintiffs dispute this – for example – they are unable to list with specificity the alleged loan payments made by the Burkes and/or escrowed or returned by the servicer and they do not have the alleged $615k lender loan application duly completed, signed and dated by the Burkes with verifiable income proving ability to repay the stated sum of the mortgage per the ‘withheld’ mortgage loan file (or ‘closing file’) as admitted by Mark D. Hopkins.

In relation to the latter, when Hopkins peered into the ‘closing file’, there was no such loan application and that is why the file was maliciously withheld by Hopkins.

The Burkes know this, as they have also peered into Hopkins April 2020 invoices (coincidentally, the same month of Hopkins first PPP loan application/payment) – and witnessed comments about scrutinizing closing/loan files for self-serving reasons only, rather than a search for the truth and disclosure to opposing counsel and/or parties.

See; Diaz v. Deutsche Bank, No. 15-41372 (5th Cir. July 6, 2016); “I’ve seen that at least 50 times, where the lender tells the borrower not to pay, we won’t foreclose and then they do….” – Judge Priscilla Owen at Oral Argument, 5th Cir.

Plaintiffs object to Defendants falsehoods, repeated with malicious intent and which is beyond ‘zealous advocacy’.

In Hopkins initial brief at the 5th Cir. (19-20267), they wrote;

“The Burkes fail to detail exactly how Attorney Appellees have taken action other than zealously represent Deutsche Bank and Ocwen”.

action is purely to void the unlawful judgment and is not attempting to assert or present any new causes of action.

Deutsche Bank is a Straw Man

First, there is no mortgage debt owed to ‘Deutsche Bank’ or ‘its successors and assigns’ and there is no valid final judgment asserting any amount owed. There is only the void judgment(s) discussed herein.

Hopkins definition of zealous advocacy is rejected, based on supporting case law. See; Ransmeier v. Mariani, 718 F.3d 64, 70-71 (2d Cir. 2013) (“What he is not allowed to do, however, is to let his misguided views cloud his judgment regarding what arguments may properly be made to this Court. In other words, we do not sanction him here for harboring anti-Semitic views. Rather, we impose sanctions against him because he allowed those views to prompt him to submit frivolous and grossly insulting arguments to this Court.”)

Hon Stephen Wm. Smith

The true facts which led to the ‘straw man’, Deutsche Bank, wrongfully and unlawfully attaching itself to the Plaintiffs and their homestead was correctly documented and decided in law by Hon. Stephen Wm. Smith when the Plaintiffs prevailed in 2015;

Deutsche Bank Nat’l Trust Co. v. Burke, 117 F. Supp. 3d 953, 956 (S.D. Tex. 2015) (“Here MERS was acting on behalf of a defunct entity (IndyMac Bank), and its purported assignment was therefore void and invalid under the Texas common law of assignments.”) and again in 2017;

Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, at *12 (S.D. Tex. Dec. 21, 2017) (“On this record, there was no existing “successor” to IndyMac Bank at the time of the 2011 assignment. There is no evidence that, prior to being placed in receivership, IndyMac Bank or its successor IndyMac Federal Bank assigned the Burke note to anyone. The purported assignment of January 20, 2011 is void and absolutely invalid. ”)

Finality of Judgment Denied by Contaminated Fifth Circuit Panels

The Defendants complain constantly about the length of the litigation. However, it was the Defendants own actions which extended the years; Deutsche Bank Nat’l Trust Co. v. Burke, 117 F. Supp. 3d 953, 961 (S.D. Tex. 2015) (“The Burkes are entitled to the finality of judgment that our judicial process is intended to provide.”).

The Plaintiffs never received finality in 2015, nor in 2017 due to Defendants subsequent appeals.

Defendants: Only Lawyers Should Be Able to Appeal

However, admitted liars and Defendants Hopkins , as foreclosure mill lawyers (unlicensed and unbonded debt collectors) who have not shown any

[35] Warrilow v. Norrell, 791 S.W.2d 515, 523 (Tex. App. 1990) (“”The practice of attorneys furnishing from their own lips and on their own oaths the controlling testimony for their client is one not to be condoned by judicial silence * * * nothing short of actual corruption can more surely discredit the profession.””); Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 784 (Tex. 2019).

agency relationship or engagement letter with either the Trustee, Banks or Non-Banks, along with alleged current mortgage servicer PHH/Ocwen, a $3 Billion Dollar+ admonished non-bank, who fabricated a debt onto their ledgers and where they hold no valid and signed loan documents, no accounting, including history for the Plaintiffs which documents their actual historical payments and other debits and credits for the purported period of the loan prior to 2010, believe only they – as lawyers – should be entitled to extend the litigation for years to achieve their desired outcome and judgment.

That would be absurd; Evans v. Jeff D, 475 U.S. 717, 766 (1986) (“”We must bear in mind at all times that rights that cannot be enforced through

the legal process are valueless; such a situation breeds cynicism about the basic fairness of our judicial system. [We] must be vigilant to insure that our legal rights are not hollow ones.”).

Length of Litigation is another ‘Red Herring’

As recently as this month, November 2021, Hopkins and his legal foreclosure colleagues at BDF Law Group and now Bradley, have submitted a second appeal to the Texas Supreme Court. PNC Mortg. v. Howard, 616 S.W.3d 581, 583 (Tex. 2021); On Sep 17, 2021 and while on remand from the Texas Supreme Court, the appellate court affirmed for the homeowners, John and Amy Howard.

On Nov 1, 2021, Hopkins appealed, once again, to Texas Supreme Court.

This is another foreclosure case (which commenced before the Plaintiffs litigation post Financial Crisis 2008) where they have abused the Howards for as many years as they have victimized John and Joanna Burke.

As such, Defendants claims are disingenuous.

The System of Fraud by Hopkins is Well Documented

The evidence of fraud, perjury and admissions by Mark Hopkins and his foreclosure counsel colleagues (BDF Law Group) appears regularly in testimony rejected by Hon. Stephen Wm. Smith as well as other judges and

[36] “Given its day in court, Deutsche Bank was content to risk its entire claim on a single problematic document. For reasons explained above, that gambit failed.”

“Deutsche Bank asks to reopen the trial record to provide “the wet ink original of the Note or testimony affirming Deutsche Bank’s status as holder of the Note.” (Dkt. 90, at 7). No authority or excuse is offered for this breathtakingly late request.”

“The time for such a deus ex machina maneuver has long since passed.” – Hon. Stephen Wm. Smith.

Deutsche Bank Nat’l Trust Co. v. Burke, CIVIL ACTION 4:11-CV-01658 (S.D. Tex. July 31, 2015).

Texas courts – as lacking in credibility. Yet, despite the court opinions documenting Defendants fraudulent foreclosure schemes, they brazenly continue, without any known sanctions by the courts pertaining to Hopkins Law firm, Mark Hopkins or Shelley Hopkins. This is extremely disturbing, not only to the Plaintiffs but the public as well, based on current legal lawsuits, media and general internet searches.

[37] Hopkins lied in foreclosure case, PNC v Howard, mirroring the unlawful acts in the Burkes Deutsche Bank Fraud case. (Burke v. Hopkins , 4:18-cv-04543, SDTX, Doc.45, p.3);

“After trial, PNC discovered a piece of evidence (a proof of mailing of the Notice of Acceleration to Mr. Howard) which had previously been unable to be located. PNC therefore moved for the admission of the additional evidence (CR 818 – 894). The Trial Court denied the motion on September 18, 2017. (RR. Vol.3, page 40, line 8).”

Hopkins also lied about the “accidental use” of a pre-merger name (p.2.).

Note; The actual motion is found at (Burke v. Hopkins , 4:18-cv-04543, SDTX, Doc 45-2.

Resheduling the Initial Conference Infers Collusion and Corruption

Obviously, those involved, including the judiciary, wish to have this embarrassing case dismissed quickly, and evidently by deceptive means.

On September 17, 2021, Hopkins attempts to make that possible by submitting a motion (Doc. 10) requesting to reschedule the initial conference, in bad faith.

The claim Hopkins asserted when asked by Plaintiffs why it would be necessary to reschedule, the emailed response was ‘counsel will be out of town that day’. (Exhibit B).

However, Hopkins would be ‘available’ to file a ‘joint case management plan (Doc. 24) on that day (Doc.

[38] The Burkes have stated in court filings they are preparing a dossier for any criminal complaint. As such, the Burkes are being transparent in their writings and declarations which will (uncomfortably) assert findings of judicial corruption, conspiracy, and collusion against the pro se, elder citizens, including abuse of their legal rights to the point of criminality.

4). Based on the subsequent events, as recorded on the docket, this was not the real reason for the delay.

Noticeably, the court would grant the motion on Sep 11, 2021 (Doc. 11), not by a week or so, but several weeks from the initial date of Nov 5 to Dec 10, 2021.

The Plaintiffs are convinced, based on motions filed by Hopkins in the interim, it confirms the true purpose of the rescheduling, which was to allow Hopkins to file these three premature and baseless motions to enable a rapid dismissal.

The additional time granted is too perfectly timed , and which will allow the conspiracy to take effect. Based on past egregious events in this court, directed at Plaintiffs, it is predicted history will repeat itself and the

[39] Crockett v. United States, 234 F.2d 560, 562 (5th Cir. 1956) (“But here the circumstances establish a chain of events which go far beyond the suspicion and conjecture stage. ”).

assigned federal judge will rule on Hopkins three premeditated motions before the initial conference and any order issued would dismiss the complaint and/or grant the pre-filing restriction, including the false recordation and labeling of vexatious litigants.

The Plaintiffs further predict this will be completed without any hearings.

However, the real position is irrefutable, namely Defendants JOTP motions fail, as they are without sufficient information, nor standing to object to the claims presented in the operative complaint.

As detailed in Plaintiffs response to the court, the vexatious litigant motion is also frivolous (Docs 20, 21 and 23).

[40] See: Burke v. Hopkins, Civil Action H-18-4543, (S.D. Tex. Mar 17-19, 2020).

Coincidentally, in a foreclosure case before Judge Bennett, and shortly after appearance by Shelley Hopkins as co-counsel, she would submit a doctored and perjured Affidavit for Attorney Fees for recently sanctioned Crystal Gibson of BDF Law Group.

Noticeably, another motion would be granted by Judge Bennett, staying the case, inviting the Crockett case assessment once more.

[41] Hicks v. Cenlar FSB, Case: 4:20-cv-01661, SDTX.

[42] Doc. 25-9, 07/28/21.

[43] Schmitgen v. Servis One, Inc.,  2:18-CV-00074, Doc.46, Jan 16, 2020;  ORDER entered. The Court REPRIMANDS Gibson for her violation of Rule 11. See Fed. R. Civ. P. 11(b) (Signed by Judge Hilda G Tagle, SDTX).

[44] Doc. 26, 09/21/21.

[45] Doc. 27, 09/22/21.

APPARENT PPP LOAN FRAUD BY HOPKINS LAW, PLLC

Forcing the Plaintiffs to serve Hopkins uncovered what appears to be manifest PPP Loan Fraud by Hopkins.

The Federal Pay website (which is not affiliated with the government) scrapes the SBA website (official government website for PPP loans/datasets) and lists all PPP payments ever made.

Their website discloses Hopkins Law, PLLC, received two such payments, one in 2020 for $41k and second disbursement in 2021 for $52k.

Federal Pay website: https://2dobermans.com/woof/59

[46] United States v. Crowther, No. 2:20-cr-00114-JLB-MRM, at *6 (M.D. Fla. Jan. 6, 2021).(“Stated differently, Mr. Crowther’s alleged crime is not that he misspent the PPP funds, but that he purportedly lied to both his PPP Lender and his Mortgage Lender.” … “Nominee loans are not illegal per se. They are illegal, however, when the borrower and the bank officer fail to state the real borrower and recipient of the funds, thereby obtaining the loans by means of false pretenses.”). Crowther was ultimately sentenced to 37 months in jail.

Federalpay.org also clarifies the reason for the loan:

“The company has reported itself as A FEMALE OWNED BUSINESS, and employed at least three people during the applicable loan loan period.”

Three people employed tallies, as Plaintiffs assume Mark and Shelley Hopkins are drawing paychecks (albeit there are restrictions, not addressed here) and the third person is paralegal Kate Barry.

The statement that it’s a FEMALE OWNED BUSINESS conflicts with the history of the law firm.

Plaintiffs are intimately aware of Hopkins Law, PLLC formation and director, as confirmed by the Texas Secretary of State filings. The Plaintiffs have included an updated search performed on Nov. 3, 2021 (Exhibit A). Mark D. Hopkins is 100% owner of Hopkins Law, PLLC.

What is the definition of a female owned business?

“Your company must be 51 percent owned by women who are U.S. citizens.”

See; https://2dobermans.com/woof/5a

CONCLUSION

United States v. Young, 470 U.S. 1, 9 (1985) (“The kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach.”).

It is patently obvious these motions are brought in bad faith and should be DENIED.

RESPECTFULLY submitted this 14th day of November, 2021.

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