CLERKGATE III
NOV 21, 2024
Despite two USPS Express Mail Packages being sent to the same court address, and both delivered with signature receipts recorded, only the later of the two deliveries has made it onto the court docket.
USPS Express Contents Delivered Nov. 21, 2024:
The November 20, 2024 combined filing.
USPS Express Contents Delivered Nov. 14, signed for Nov. 15, 2024:
The November 13, 2024 combined filing.
and
The November 11, 2024 combined filingg.
DOCSENT,MAG |
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00897
Burke v. PHH Mortgage Corporation et al Assigned to: Judge Charles Eskridge Referred to: Magistrate Judge Christina A Bryan
Cause: 28:1332 Diversity-Injunctive & Declaratory Relief |
Date Filed: 03/12/2024 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
Date Filed | # | Docket Text |
---|---|---|
12/05/2024 | 45 | MOTION for Leave to File Surreply to PHH Mortgage Corporation’s Motion for Summary Judgment by Joanna Burke, filed. Motions referred to Christina A Bryan. Motion Docket Date 12/26/2024. (Attachments: # 1 Proposed Order) (cng4) (Entered: 12/05/2024) |
12/06/2024 | 46 | Letter from J. Burke re: Filings, filed. (dah4) (Entered: 12/06/2024) |
12/16/2024 | 47 | RESPONSE in Opposition to 45 MOTION for Leave to File Surreply to PHH Mortgage Corporation’s Motion for Summary Judgment, filed by PHH Mortgage Corporation. (Hopkins, Mark) (Entered: 12/16/2024) |
12/30/2024 | 48 | REPLY to Response to 45 MOTION for Leave to File Surreply to PHH Mortgage Corporation’s Motion for Summary Judgment, filed by Joanna Burke. (dah4) (Entered: 12/30/2024) |
01/02/2025 | 49 | Letter from Joanna Burke re: Joanna Burk’s Filings, filed. (csr4) (Entered: 01/06/2025) |
01/10/2025 | 50 | MOTION for Leave to Exceed Word CountMotions referred to Christina A Bryan. by PHH Mortgage Corporation, filed. Motion Docket Date 1/31/2025. (Attachments: # 1 Proposed Order) (Hopkins, Shelley) (Entered: 01/10/2025) |
PACER Service Center | |||
---|---|---|---|
Transaction Receipt | |||
01/14/2025 02:08:25 |
Hello Joanna Burke,
Your item was picked up at postal facility at
9:47 am on November 21, 2024 in HOUSTON, TX 77208.
The item was signed for by B LACEY.
Tracking Number: 9481730109355000162426
Package Shipped from: HQ – ECNS
Delivered, Individual Picked Up at Postal Facility
Hello Joanna Burke,
Your item was picked up at postal facility at
9:06 am on November 15, 2024 in HOUSTON, TX 77208.
The item was signed for by H LERMA.
Tracking Number: 9481730109355000137813
Package Shipped from: HQ – ECNS
Delivered, Individual Picked Up at Postal Facility
DOCSENT,MAG |
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00897
Burke v. PHH Mortgage Corporation et al Assigned to: Judge Charles Eskridge Referred to: Magistrate Judge Christina A Bryan
Cause: 28:1332 Diversity-Injunctive & Declaratory Relief |
Date Filed: 03/12/2024 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
Date Filed | # | Docket Text |
---|---|---|
11/10/2024 | 42 | RESPONSE in Opposition to 33 MOTION to Dismiss, filed by PHH Mortgage Corporation. (Hopkins, Shelley) (Entered: 11/10/2024) |
11/21/2024 | 43 | PLAINTIFF’S REPLY to 42 Response in Opposition to Motion, filed by Joanna Burke. (cng4) (Entered: 11/21/2024) |
11/21/2024 | 44 | SURREPLY to 27 MOTION for Summary Judgment , filed by Joanna Burke. (cng4) (Entered: 11/21/2024) |
PACER Service Center | |||
---|---|---|---|
Transaction Receipt | |||
11/21/2024 17:26:47 |
LITX
OCT 15, 2024
PHH’s Deep Pockets Enlists Judicial Intervention https://t.co/QtArUFpuKk pic.twitter.com/1Xv4nwsNPi
— lawsinusa (@lawsinusa) October 15, 2024
The Side-hustle for Federal Judges Explained pic.twitter.com/lI97JXqWy9
— lawsinusa (@lawsinusa) October 15, 2024
MEMORANDUM AND RECOMMENDATION
GRANTING
PHH MORTGAGE CORPORATION’S MOTION FOR SUMMARY JUDGMENT
JAN 23, 2035
Plaintiff, a veteran litigant proceeding pro se, initiated this case in state court on December 21, 2023, as part of her approximately 14-year effort to thwart foreclosure on residential property located in Kingwood, Texas (Property).1
ECF 1- 4;
See also ECF 18,
ECF 33-3 at 36-37.
Before the Court is PHH Mortgage Corporation’s Motion for Summary Judgment.2
ECF 27.
The Court recommends the Motion for Summary Judgment be GRANTED and this case be dismissed with prejudice.
I. Procedural Background
The instant case has been pending in this court only since April 2024, but its procedural history goes back to 2007. On May 21, 2007, Plaintiff and her husband,
1 The District Judge referred this case to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(A) and (B), the Cost and Delay Reduction Plan under the Civil Justice Reform Act, and Federal Rule of Civil Procedure 72. ECF 26.
2 The Court has dismissed all other Defendants. ECF 23.
John Burke (deceased), executed a $615,000.00 home equity note secured by deed of trust on the Property.
In 2010, the Burkes stopped making payments on the loan, paying taxes, and paying insurance.
In the ensuing years, the holders of the note and deed of trust have been attempting to foreclose on the Property.
The Burkes’ first lawsuit was filed by counsel in Texas state court and, after the defendant removed the case to federal court, the Burkes voluntarily dismissed the suit without prejudice on March 4, 2011.
Burke v. IndyMac Mort. Servs., Civil Action No. 4:11-cv-00341.
On April 29, 2011, Deutsche Bank National Trust Co., in its capacity as assignee of the note and deed of trust, filed suit against the Burkes in federal court seeking an order of foreclosure.
Deutsche Bank Nat’l Tr. Co. v. Burke, Civil Action No. 4:11-CV-01658 (ECF 1).
After lengthy litigation, the case finally concluded when the Fifth Circuit ruled in favor of Deutsche Bank and remanded the case to the district court for the sole purpose of entering an Order of Foreclosure to effectuate the Fifth Circuit’s judgment, which the district court did on November 29, 2018.
Id. at ECF 145.
The United States Supreme Court denied review.
Id. at ECF 146.
The Burkes filed four more lawsuits, including one in Minnesota, and Joanna Burke filed two bankruptcy cases and an adversary proceeding, all of which were dismissed.
See ECF 27 at 4-8 (listing cases).
Joanna Burke also unsuccessfully attempted to intervene in other, unrelated litigation at least four times.
Id.
By PHH’s count, the instant case is the seventh lawsuit involving the Burke’s Property.
Id.
Joanna Burke initiated this case in state court on December 21, 2023 to prevent the impending January 2, 2024 foreclosure sale of the Property.
ECF 1-4 at
2. Plaintiff’s operative pleading is the Third Amended Verified Petition and Second Application for Ex-Parte Temporary Restraining Order and Permanent Injunction by Joanna Burke, filed in state court on March 4, 2024.
Id. at 393-500.
Plaintiff’s 100- plus page pleading asserts many allegations and seeks consequential and punitive damages in an unspecified amount, declaratory judgment, and injunctive relief “to prevent defendants from unlawfully selling her homestead, in violation of Texas laws.”
Id. at 498-99.
II. Summary Judgment Standards
Summary judgment is appropriate if no genuine issues of material fact exist, and the moving party is entitled to judgment as a matter of law.
FED. R. CIV. P. 56(a).
The party moving for summary judgment has the initial burden to prove there are no genuine issues of material fact for trial.
Provident Life & Accident Ins. Co. v. Goel, 274 F.3d 984, 991 (5th Cir. 2001).
Dispute about a material fact is “genuine” if the evidence could lead a reasonable jury to find for the nonmoving party.
Hyatt v. Thomas, 843 F.3d 172, 177 (5th Cir. 2016).
“An issue is material if its resolution could affect the outcome of the action.”
Terrebonne Parish Sch. Bd. v. Columbia Gulf Transmission Co., 290 F.3d 303, 310 (5th Cir. 2002).
If the moving party meets its initial burden, the nonmoving party must go beyond the pleadings and must present evidence such as affidavits, depositions, answers to interrogatories, and admissions on file to show “specific facts showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
The court construes the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party’s favor.
R.L. Inv. Prop., LLC v. Hamm, 715 F.3d 145, 149 (5th Cir. 2013).
In ruling on a motion for summary judgment the Court does not “weigh evidence, assess credibility, or determine the most reasonable inference to be drawn from the evidence.”
Honore v. Douglas, 833 F.2d 565, 567 (5th Cir. 1987).
However, “[c]onclus[ory] allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation do not adequately substitute for specific facts showing a genuine issue for trial.”
U.S. ex rel. Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008) (citation omitted).
III. Analysis
Despite the November 29, 2018 judgment authorizing foreclosure, Joanna Burke filed the Third Amended Petition in state court asserting the following causes of action:
(1) violation of the Texas Constitution;
(2) malicious abuse of process;
(3) conspiracy;
(4) fraud;
(5) intentional infliction of emotional distress;
(6) mental anguish;
(7) violation of the Texas Debt Collection Act;
and
(8) quiet title.
ECF 1- 4 at 476-491.
Plaintiff seeks declaratory judgment and injunctive relief preventing foreclosure.
Id. at 491-96.
PHH moves for summary judgment on all of Plaintiff’s claims based both on res judicata and on the merits.
In her Summary Judgment Response and Surreply, Plaintiff argues that PHH’s efforts to foreclose on the Property are time-barred under Texas Civil Properties and Remedies Code § 16.035, which establishes a four-year limitations period for foreclosure of contractual liens.
ECF 40; ECF 44.
A. PHH’s Foreclosure Efforts are Timely.
Section 16.035 of the Texas Civil Practices and Remedies Code provides:
(a) A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.
(b) A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.
TEX. CIV. PRAC. & REM. CODE § 16.035.
Plaintiff misunderstands PHH’s position. PHH is not attempting to foreclose under a real property lien; the lien has already been foreclosed.
PHH is attempting to execute on a judicial foreclosure order.
The Fifth Circuit recently addressed this situation in Couch v. Bank of New York Mellon, No. 24-10297, 2024 WL 4471309, at *1 (5th Cir. Oct. 11, 2024).
Like Ms. Burke, the Couches argued that § 16.035 requires mortgagees to file suit and hold a foreclosure sale within four years.
Id.
The Fifth Circuit held that is not the law in Texas.
Id. (citing Slay v. Nationstar Mortg., L.L.C., No. 2-09-052-CV, 2010 WL 670095, at *3 (Tex. App.—Fort Worth Feb. 25, 2010, pet. denied)
(holding that § 16.035(a) “does not require that the actual foreclosure occur within the four-year limitation period, but rather, requires only that the party seeking foreclosure ‘bring suit … not later than four years after the day the cause of action accrues.’”));
see also Holcomb v. Specialized Loan Servicing, LLC, No. 3:21-CV-00210, 2024 WL 4124698, at *3 (S.D. Tex. Sept. 9, 2024)
(holding it is “simply not the law” that a foreclosure sale must occur within four years of the entry of the foreclosure judgment
(citing Metcalf v. Wilmington Sav. Fund Soc’y, FSB, No. 03-16-00795-cv, 2017 WL 1228886, at *4 (Tex. App.—Austin Mar. 29, 2017, pet. denied))).
PHH’s statute of limitations to execute on the foreclosure judgment is governed by Texas Civil Practice and Remedies Code § 34.001, which provides:
(a) If a writ of execution is not issued within 10 years after the rendition of a judgment of a court of record or a justice court, the judgment is dormant and execution may not be issued on the judgment unless it is revived.
Holcomb, 2024 WL 4124698, at *3 n.4;
see also Andrews v. Roadway Exp. Inc., 473 F.3d 565, 568-69 (5th Cir. 2006)
(state law applies to the time for executing a federal judgment and under Texas Civil Practice and Remedies Code § 34.001 a judgment is “dormant” if no writ of execution is issued within ten years after the date of the judgment).
The final Foreclosure Order was entered on November 29, 2018. PHH’s current efforts to execute on the Foreclosure Order are not time-barred.
B. Plaintiff’s Attempts to Prevent Foreclosure are Barred by Res Judicata.
1. Legal Standards
The doctrine of res judicata bars the litigation of claims that either have been litigated or should have been raised in an earlier suit.
Crotts v. Freedom Mortg. Corp., No. 4:23-CV-04828, 2024 WL 3938926, at *5 (S.D. Tex. Aug. 6, 2024), report and recommendation adopted, No. 4:23-CV-04828, 2024 WL 3939585 (S.D. Tex. Aug. 26, 2024)
(citing Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005)).
Because Plaintiff is asserting state law claims, Texas preclusion principals apply, but the elements of res judicata under Texas law are substantively identical to federal law.
Id.
The doctrine of res judicata bars claims when:
(1) the parties are identical or in privity;
(2) the judgment in the prior action was rendered by a court of competent jurisdiction;
(3) the prior judgment was a final judgment on the merits;
and
(4) the second action is based on claims that were or could have been raised in the first action.
Id.; Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559, 571 (5th Cir. 2005).
2. Application of Res Judicata Factors
The November 29, 2018 final judgment in favor of Deutsche Bank in Civil Action No. 4:11-cv-01658 precludes this case.
(1) Privity
Joanna Burke was a defendant in Civil Action No. 4:11-cv-01658.
PHH is the successor in interest to Deutsche Bank, the plaintiff in 4:11-cv-01658.
The Fifth Circuit has held that privity exists for purposes of res judicata where a non-party in a prior action is the successor in interest to a party’s interest in property.
Meza v. Gen. Battery Corp., 908 F.2d 1262, 1266 (5th Cir. 1990);
see also Sampson v. U.S. Bank NA as Tr. for Truman 2016 SC6 Title Tr., No. 420CV00493ALMCAN, 2021 WL 1321343, at *6 (E.D. Tex. Mar. 15, 2021), report and recommendation adopted, No. 4:20-CV-493, 2021 WL 1316969 (E.D. Tex. Apr. 8, 2021).
The first requirement for res judicata is met because privity exists between all parties in the prior and current lawsuit.
(2) Competent Jurisdiction
The United States District Court for the Southern District of Texas was a court of competent jurisdiction for Civil Action No. 4:11-cv-01658.
The district court exercised diversity jurisdiction in Civil Action No. 4:11-cv-01658 because the Plaintiff corporation was a citizen of California and defendants, including Joanna Burke, were citizens of Texas.
Civil Action No. 4:11-cv-01658 (ECF 1).
The Fifth Circuit exercised jurisdiction in defendants’ appeals, confirming that the district court in the Southern District of Texas was a court of competent jurisdiction.
Therefore, the second requirement for application of res judicata is met.
(3) Final Judgment on the Merits
The Fifth Circuit ruled on the merits of Plaintiff’s claim in Civil Action No. 4:11-cv-01658, holding that Plaintiff Deutsche Bank was entitled to an order authorizing foreclosure on the Property.
ECF 144.
Following the express direction of the Fifth Circuit, the district court entered a final Order in Civil Action No. 4:11- cv-01658 on November 29, 2018.
ECF 145.
The case finally and completely concluded on May 28, 2019 when the United States Supreme Court denied a writ of certiorari.
ECF 146.
Thus, the third requirement for application of res judicata is met.
(4) Identity of Claims
The Fifth Circuit applies a transaction test to determine the identity of claims for purposes of res judicata.
Sacks v. Texas S. Univ., 83 F.4th 340, 344 (5th Cir. 2023).
The critical issue in the analysis is “whether the two actions are based on the ‘same nucleus of operative facts.’”
Id. (citation omitted).
The prior case and this case are both based on Plaintiff’s default on the 2007 loan and efforts to foreclosure on the Property.
Although Plaintiff’s Third Amended Complaint includes a laundry list of allegations, all of her claims and the relief she seeks stem from the foreclosure efforts on the 2007 loan and were or could have been raised in Civil Action 4:11-cv- 01658.
Res judicata bars all claims in this case relating to foreclosure, including claims for declaratory and injunctive relief, because all claims are based on the same premise—that PHH has no legal right to foreclose on the Property.
C. No Genuine Issue of Material Fact Exists for Trial on any Claim.
Res judicata does not extinguish claims based on wrongs that occurred after the prior final judgment.
Id. at 345.
To the extent some of Plaintiff’s claims purport to seek relief for actions that occurred after November 2018, they are without merit and are addressed succinctly below.
1. Violation of the Texas Constitution
Plaintiff alleges that PHH’s actions constitute elder abuse and denial of equal protection and due process in violation of Article I, §§ 3a, 9, and 19 of the Texas Constitution.
See ECF 1-4 at 475-81.
Burke’s claim for violation of the Texas Constitution is barred by res judicata to the extent it alleges harm due to attempts to foreclosure on the Property.
Moreover, in addition to the total lack of evidentiary support for such claims, Plaintiff’s claims cannot survive summary judgment because the Texas Constitution does not create a private right of action against private entities for damages.
Daniels v. City of Arlington, Tex., 246 F.3d 500, 507 (5th Cir. 2001); see also City of Beaumont v. Bouillion, 896 S.W.2d 143, 147 (Tex.1995); Chapman v. ADT LLC, No. 3:22-CV-2188-D-BN, 2023 WL 9953451, at *4 (N.D. Tex. Dec. 28, 2023), report and recommendation adopted, No. 3:22-CV-2188- D, 2024 WL 920074 (N.D. Tex. Mar. 4, 2024).
2. Malicious Abuse of Process
Abuse of process “applies to a situation where a properly issued service of process is later used for a purpose for which it was not intended.”
Martinez v. Eng., 267 S.W.3d 521, 528–29 (Tex. App.—Austin 2008, pet. denied).
The elements of an abuse of process claim under Texas law are:
“(1) an illegal, improper, or perverted use of the process, neither warranted nor authorized by the process, (2) an ulterior motive or purpose in exercising such use, and (3) damages as a result of the illegal act.”
Preston Gate, LP v. Bukaty, 248 S.W.3d 892, 897 (Tex. App.—Dallas 2008, no pet.).
“The critical aspect of this tort is the improper use of the process after it has been issued.”
Id.
“Process” refers “to the range of procedures incident to litigation.”
LaCore Enterprises, LLC v. Angles, No. 05-21-00798-CV, 2023 WL 2607562, at *10 (Tex. App. Mar. 23, 2023).
Ms. Burke has presented no evidence to support an abuse of process claim against PHH for attempting to enforce its valid judgment of foreclosure.
3. Conspiracy
Plaintiff alleges that PHH and the former Defendants engaged in a conspiracy to damage Plaintiff.
“An actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means.”
Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983); Midwestern Cattle Mktg., L.L.C. v. Legend Bank, N. A., 800 F. App’x 239, 248 (5th Cir. 2020) (listing the elements as:
“(1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful, overt acts; and (5) damages as the proximate result.”).
Again, to the extent she alleges a claim of conspiracy to foreclose on the Property, it is barred by res judicata.
Further, because PHH holds a valid judgment, attempts to sell the Property at a foreclosure are not in furtherance of an unlawful purpose. Therefore, Defendant is entitled to summary judgment on Plaintiff’s conspiracy claim.
4. Fraud
The elements of fraud under Texas law are:
(1) that a material representation was made; (2) the representation was false; (3) when the representation was made, the speaker knew it was false or made it recklessly without any knowledge of the truth and as a positive assertion; (4) the speaker made the representation with the intent that the other party should act upon it; (5) the party acted in reliance on the representation; and (6) the party thereby suffered injury.
Italian Cowboy Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011).
The Court cannot discern from Plaintiff’s Third Amended Petition or Response what false material representation PHH (or its predecessor) is alleged to have made and on which Plaintiff justifiably relied to her detriment.
To the extent Ms. Burke is alleging fraud related to foreclosure, the claim is barred by res judicata.
Ms. Burke has presented no evidence of fraud by PHH and summary judgment should be granted on this claim.
5. Intentional Infliction of Emotional Distress and Mental Anguish
The tort of intentional infliction of emotional distress (IIED) has four elements:
(1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the emotional distress was severe. Hersh v. Tatum, 526 S.W.3d 462, 468 (Tex. 2017).
The Texas Supreme Court has defined “extreme and outrageous conduct” as conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id.;
Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003).
Mental anguish is a type of damages recoverable for certain torts, such as IIED, but does not constitute an independent claim. SCI Texas Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539, 546 (Tex. 2018)
(holding that “mental anguish damages may be available when they are ‘caused by defendant’s breach of some other legal duty.’” (citation omitted)).
Ms. Burke has presented no evidence to support an IIED claim against PHH.
“Texas courts have made clear that conduct associated with exercising a legal right is privileged and cannot be the basis for an IIED claim.”
Hines v. Wells Fargo Bank, N.A., No. CIV.A. H-13-00167, 2013 WL 5786473, at *7 (S.D. Tex. Oct. 28, 2013) (citations to Texas cases omitted).
PHH is entitled to summary judgment on Plaintiff’s IIED claim.
6. Texas Debt Collection Act
Plaintiff also alleges a cause of action under TEX. FIN. CODE § 392.403 (a)(2) of the Texas Debt Collection Act, (TDCA). Plaintiff alleges that PHH violated the TDCA by attempting to foreclose on the Property without the legal right to do so. ECF 1-4 at 488-89.
The TDCA prohibits mortgage services from threatening foreclosure only to the extent the threatened foreclosure is prohibited by law.
See Rucker v. Bank of Am., N.A., 806 F.3d 828, 831 (5th Cir. 2015)
(explaining that a mortgage servicer does not violate the TDCA if it has the right to foreclose and the mortgagee is in default).
Because it is well-established that Burke defaulted on her mortgage and that the November 29, 2018 foreclosure Order gives PHH the legal right to foreclose, PHH is entitled to summary judgment on this claim.
7. Quiet Title
“The elements of a quiet title claim include: “‘(1) an interest in a specific property, (2) title to the property is affected by a claim by the defendant, and (3) the claim, although facially valid, is invalid or unenforceable.’”
Vallier v. Nationstar Mortg., LLC, No. CV H-17-0998, 2018 WL 1319166, at *6 (S.D. Tex. Feb. 1, 2018), report and recommendation adopted, No. 4:17-CV-0998, 2018 WL 1322247 (S.D. Tex. Mar. 13, 2018) (citation omitted).
“In a trespass-to-try-title action, a plaintiff may prove legal title by establishing:
(1) a regular chain of title of conveyances from the sovereign to the plaintiff; (2) a superior title to that of the defendant out of a common source; (3) title by limitations (i.e., adverse possession); or (4) possession that has not been abandoned.”
Brumley v. McDuff, 616 S.W.3d 826, 832 (Tex. 2021).
Special pleading requirements govern trespass-to-try title actions and in order to prevail on a claim to quiet title or for trespass-to-try-title, Plaintiff bears the burden to prove she has title to the Property that is superior PHH’s title.
Id.; Vallier, 2018 WL 1319166, at *6.
Plaintiff’s title to the Property has always been subject to the deed of trust secured by the Property.
Plaintiff has wholly failed to meet her burden to present evidence showing she holds superior title to PHH.
In Plaintiff’s Summary Judgment Response, she argues that her claim is in the nature of trespass-to-try-title by adverse possession.
ECF 35 at 17.
Texas law requires a party claiming title to property by adverse possession to show “(1) actual and (2) visible possession that is (3) under a claim of right, (4) hostile to another’s claim to the property, and (5) peaceable for the applicable limitations period.”
Luminant Mining Co., L.L.C. v. PakeyBey, 14 F.4th 375, 380 (5th Cir. 2021) (citing Nat. Gas Pipeline Co. of Am. v. Pool, 124 S.W.3d 188, 193 (Tex. 2003)).
“Peaceable possession is ‘possession of real property that is continuous and is not interrupted by an adverse suit to recover the property.’”
Id. (citing TEX. CIV. PRAC. & REM. CODE § 16.021(3)).
There is no question that Plaintiff is in possession of the Property under a claim of right that is hostile to PHH’s claim of right and has been in such possession for over ten years.
What Plaintiff cannot show is that her possession has been “peaceable.”
PHH, through its predecessor, brought an adverse suit to recover the Property and, within the statutory period to thwart any claim for adverse possession, PHH’s predecessor prevailed.
PHH is entitled to summary judgment on Plaintiff’s claim for quiet title and/or trespass-to-try-title.
8. Declaratory and Injunctive Relief
Claims for declaratory and injunctive relief are not freestanding claims and they must be supported by an underlying cause of action.
Reyes v. N. Texas Tollway Auth., (NTTA), 861 F.3d 558, 565 (5th Cir. 2017) (citing Harris County Texas v. MERSCORP, Inc., 791 F.3d 545, 552 (5th Cir. 2015)
(“[T]he Declaratory Judgment Act alone does not create a federal cause of action.”) and Crook v. Galaviz, 616 F. A’ppx. 747, 753 (5th Cir. 2015) (“As an injunction is a remedy that must be supported by an underlying cause of action”)).
The failure of Plaintiff’s independent claims dooms her claims for declaratory and injunctive relief.
IV. Conclusion and Recommendation
In sum, no dispute of material fact exists as to any claim in this case. Ms. Burke’s “evidence” consists of immaterial assertions and “[c]onclus[ory] allegations and denials, speculation, improbable inferences, unsubstantiated assertions, and legalistic argumentation,” which does not present a genuine issue for trial. U.S. ex rel.
Farmer v. City of Houston, 523 F.3d 333, 337 (5th Cir. 2008).
It is undisputed that Joanna Burke has not made a mortgage loan payment since 2010.
Six years ago, the Fifth Circuit held that “[g]iven nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”
Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548, 552 (5th Cir. 2018).
Ms. Burke has presented no evidence demonstrating the situation described by the Fifth Circuit has changed.
For all the reasons set forth above, the Court RECOMMENDS that PHH’s Motion for Summary Judgment (ECF 27) be GRANTED and all of Plaintiff’s claims be DISMISSED WITH PREJUDICE.
The Clerk of the Court shall send copies of the memorandum and recommendation to the respective parties, who will then have fourteen days to file written objections, pursuant to 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections within the time period provided will bar an aggrieved party from attacking the factual findings and legal conclusions on appeal. Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds.
Signed on January 23, 2025, at Houston, Texas.
Christina A. Bryan
United States Magistrate Judge
VERIFIED RESPONSE TO PHH MORTGAGE CORPORATION’S MOTION FOR SUMMARY JUDGMENT
OCT 3, 2024 – REPUBLISHED BY LIT: OCT 15, 2024
TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:
The movants’ incompetent and unauthenticated Motion for Summary Judgment (“DMSJ,” Doc. 27, Aug. 5, 2024) presents disregarded legal arguments (p. 14, n. 3) and serves as a distraction from the critical fact that the order of foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) has expired, along with the power of sale, rendering the lien void under Texas law.
Defendants’ reliance on res judicata is misplaced; a void judgment does not invoke res judicata principles.
The DMSJ is frivolous and exemplifies ongoing harassment and elder abuse against an 85-year-old widow.
In this detailed response, nonmovant provides compelling legal arguments to support the denial of the DMSJ.
PRO SE PLEADING STANDARD
Courts must liberally construe the filings of pro se litigants, as established in Haines v. Kerner, 404 U.S. 519 (1972) and should be held to less stringent standards than those drafted by attorneys.
DEFENDANTS ATTEMPTS AT NON-JUDICIAL FORECLOSURE ARE ILLEGAL, UNTIMELY, WITHOUT AUTHORITY, AND VOID (DOC 1-4, P.467-470)
Nonmovant references the Plaintiff’s Operative and Verified Third Amended Complaint (“TAC”) at p. 470: “assuming that the non-judicial foreclosure sale could proceed despite the ongoing litigation in federal court and assuming the Order was not deficient, the Order of Foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) expired on Nov. 28, 2022.”
This is supported by Civil Practice and Remedies Code section 16.035.
In Porterfield v. JP Morgan Chase, N.A., No. 16-50215, at *5 (5th Cir. Mar. 16, 2017), the court stated that defendants have four years from the acceleration of the loan to complete nonjudicial foreclosure.
The Fifth Circuit clarifies that “Section 16.035(b) controls here because the Defendants pursued nonjudicial foreclosure pursuant to a deed of trust creating the lien” (at *4-5).
The same applies here, as demonstrated in EXHIBITS DB13-MSJ, DB16-MSJ at 8.
It ain’t Ten Years, its Unequivocally Four Years according to the 5th Circuit https://t.co/GoCVACB66y pic.twitter.com/FldZzZv78O
— lawsinusa (@lawsinusa) October 16, 2024
DEFENDANTS FAILURE TO PROSECUTE
Plaintiff is not responsible for Defendants failure to timely prosecute and execute the now expired judgment on behalf of DBNTCO; see In re Kingman Holdings, LLC, No. 13-21-00217-CV, at *12 (Tex. App. Sep. 22, 2021)
(“Kingman should not have to endure the time and expense of continuing to litigate a four-year-old case that is not being diligently prosecuted”),
see also; Bryant v. DiTech Fin., No. 23-10416, at *6 (5th Cir. Mar. 1, 2024) (TAC, p.472).
EIGHT (8) FINAL JUDGMENTS AND SETTLEMENT(S) IN RELATED CASES SUPPORT PLAINTIFF’S ARGUMENTS AND ADVERSE TO DEFENDANTS
Contradicting the movants DMSJ, Plaintiff provides a series of recent cases in support of her arguments, and where “defaulting” homeowners or current owners who purportedly “thwarted foreclosure” and their “contractual” obligations for years if not decades without paying a dime towards the disputed mortgage, taxes and insurance (DMSJ, p.12(25)) are receiving a “free home” after enjoying extended “free living” (DMSJ, p.1, 12, 16, and 25), and they also include parties who are not the original owners or mortgagors;
1) Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 (S.D. Tex. Sep. 23, 2024) (Doc. 29, $396,600 Lien Void and Stricken; EXHIBIT DBMORLOCK-MSJ);
2) Deutsche Bank Nat’l Trust Co. v. Ketmayura, No. A-14-CV-00931-LY-ML (W.D. Tex. June 11, 2015) ($1M Void and Settled by Lien Release);
3) Powell v. Cit Bank, N.A., No. 14-15-00949-CV (Tex. App. June 8, 2017, $273k Lien Void and All Remaining Claims on Remand in favor of Powell);
4) Planet Home Lending, LLC v. Nunn, No. 04-20-00309-CV (Tex. App. Oct. 26, 2022, $247k Void and Lien Released);
5) U.S. ROF III Legal Title Tr. 2015-I v. Morlock, L.L.C., No. 14-18-00332-CV (Tex. App. Jan. 14, 2020, Void and Lien Released);
6) Deutsche Bank Nat’l Tr. Co. v. Gonzalez, No. 01-24-00292-CV (Tex. App. Sep. 5, 2024) ($60k Secured Lien, discharged for failure to prosecute);
7) Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV (Tex. App., filed Sep. 19, 2019) ($4M Judgment including millions in exemplary and mental anguish damages against Deutsche Bank and Ocwen (PHH) individually, Settled), and;
8) Kafi, Inc. v. Fairgate Tr., Civil Action H-23-4217, at *7 (S.D. Tex. Aug. 15, 2024) (“Summary judgment is granted for Kafi on its claims for quiet title and for a declaratory judgment that foreclosure is barred by the statute of limitations.”).
THE DEFENDANTS WERE FULLY AWARE THE FORECLOSURE JUDGMENT AND POWER OF SALE HAS EXPIRED, AS COUNSEL IN THE LANDMARK PNC CASE
“This case is before us for a second time” Texas Supreme Court Chief Justice Hecht stated in PNC Mortgage v. Howard, 668 S.W.3d 644 (Tex. 2023), where it is undisputed that PNC did not initiate foreclosure until the statute of limitations had expired on its lien.
The Howards ceased payments in 2008.
Recently, the lower court indicated a judgment in favor of the Howards, but the Plaintiff anticipates that involvement from PNC and their counsel, Mark and Shelley Hopkins, may lead to further appeals, reflecting their 15 years of aggressive litigation against the Howards.
Joanna Burke will illustrate how this pattern of unfounded litigation is their modus operandi in her case.
DISSECTING THE STATE COURT COMPLAINT AND CAUSES OF ACTION
The Plaintiff, Joanna Burke’s TAC identifies with specificity the timeline of the Harris County District Court proceedings, detailing numerous and willfully persistent breaches of Plaintiff’s
(i) consumer protections pertaining to her homestead,
and;
(ii) her civil, legal and constitutional rights, including but not limited to access to the courts and a fair, impartial trial after Defendants initiated nonjudicial foreclosure proceedings, appointing and relying upon Co-Conspirators to assist in their premeditated fraudulent scheme to auction and sell Plaintiff’s homestead, admittedly and knowingly relying upon an expired judgment and time-barred power of sale,
(iii) causing extreme and severe emotional distress and mental anguish.
THE MUTUAL CONSPIRACY: TWO ATTEMPTS TO ILLEGALLY FORECLOSE
Joanna Burke filed her lawsuit after learning her homestead was set for illegal auction on January 2, 2024.
After contacting Mackie Wolf Zientz Mann (“Mackie Wolf”) to cancel the foreclosure, they refused, leading to a timeline that evidences escalating harassment by Defendants, including multiple illegal foreclosure attempts (Acts One through Seven, TAC pp. 396-399).
Notably, in March 2024, Plaintiff discovered these foreclosure attempts were time-barred, a fact Defendants were aware of when issuing the first illegal notice of foreclosure
(Exhibits DB1, p.502-504; DB1-MSJ; Deutsche Bank Nat’l Trust Co. v. Ketmayura, No. A-14-CV-00931-LY-ML, W.D. Tex. June 11, 2015; this time-barred case resulted in DBNTCO releasing the $1M lien).
Defendants calculated that Plaintiff’s bankruptcy filing (DMSJ, EXHIBIT G) would prevent awareness of their actions, prompting a second foreclosure attempt (DMSJ, EXHIBIT H) when the first bankruptcy concluded.
Plaintiff indicated in her Second Verified Amended Complaint (Feb. 23, 2024) that she had not received the second foreclosure notice (TAC p. 442) and filed a second bankruptcy on March 1, 2024, unaware the power of sale had expired (Exhibit DB2, DB2-MSJ).
She only became aware of this around March 4, 2024, when filing her Third Verified Amended Complaint, followed by a “Motion for Partial Summary Judgment” on March 11, 2024.
PHH Mortgage Corporation (“PHH”) filed an answer on March 3, 2024, and unlawfully removed the case to federal court on March 12, 2024.
The Plaintiff’s complaint amendments were necessitated by Defendants’ legal violations.
Initially, the Original Verified Petition (“OTAC”) named Deutsche Bank National Trust Company, PHH, AVT Title Services LLC, and Mackie Wolf Zientz & Mann PC.
Subsequent amendments added judges and additional parties based on harms suffered during state court proceedings, expanding causes of action.
The substantive STAC included violations of the Texas Constitution, abuse of process, conspiracy, fraud, emotional distress, mental anguish, TDCA, and injunctive relief.
The TAC further included a Quiet Title claim.
PHH’s counsel contended the amendments were fabricated to harass, a claim the Plaintiff rejects, supported by a confidential settlement offer (TAC p.405(3), Exhibit DB3, TAC, p.508; EXHIBIT DB3-MSJ) made just prior to the initiation of the first foreclosure.
This offer warrants in camera review to uphold due process rights.
The Defendants’ willingness to offer a settlement (EXHIBIT DB3-MSJ) strongly refutes the baseless arguments presented in this motion, including the recent barrage of court decisions and settlements outlined herein, which unequivocally support the Plaintiff’s legal position:
specifically, that the movants have no legal right to foreclose and that this motion should be DENIED.
Additionally, it is well-established that a Plaintiff controls their own complaint (2013 Hous. Sunnyside St. v. Duvernay, Civil Action 4:24-CV-0687, S.D. Tex. May 21, 2024), and any failure by Defendants to properly prosecute affects the case’s outcome.
The court should note that only one Defendant, PHH, remains in the federal proceedings, which materially impacts the causes of action in the TAC.
LIT’s BREAKING NEWS STORY PART II COMING SOON
The decision to retain “related to” jurisdiction with concurrent proceedings, as determined by District Judge Werlein defies his own court’s precedent: General Order 2012-06 which mandates automatic transfer to Bankruptcy court. pic.twitter.com/nC01iFJRDj— lawsinusa (@lawsinusa) October 8, 2024
RES JUDICATA: Does NOT Apply to these Proceedings
Movants assert that res judicata bars the Plaintiff’s TAC entirely; however, this argument is flawed and warrants a detailed response.
Notably, in United States ex rel. Eichner v. Ocwen Loan Servicing, LLC, Civil Action 4:19-CV-524 (E.D. Tex. Sep. 16, 2024) (Doc. 163; EXHIBIT DBUSAEICHNER-MSJ), the USA filed a motion stating,
“The United States’ dismissal is not intended to prevent Relators from pursuing in this action alleged FCA violations of any named Defendant that accrued after February 17, 2017.”
Movants also agree with the USA in Eichner at DMSJ, p.39, regarding res judicata and the limitation of a cause of action to events occurring before a specified date.
This aligns with the assertion that the attempts at nonjudicial foreclosure occurred after the four-year statute of limitations had expired per Tex. Civ. Prac. & Rem. Code §16.035(b), thus voiding the Defendants’ power of sale.
As established in Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 at *16 (S.D. Tex. Sep. 23, 2024) (Doc. 29),
“When the lender failed to foreclose within the four-year period, it ‘void[ed] the lien and the power of sale.’”
A final judgment was entered on Sep. 27, 2024 ((Doc. 31) declaring all liens VOID and STRICKEN; EXHIBIT DBMORLOCK-MSJ.
The general rule states that issue preclusion applies only when an issue is litigated and determined by a valid judgment
(Arizona v. California, 530 U.S. 392, 395 (2000)).
A judgment void on its face is effectively no judgment and does not constitute res judicata
(Jackson v. Vance, 179 F.2d 154, 158 (10th Cir. 1950)).
Furthermore, res judicata does not bar litigation when a second claim could not have been raised in previous litigation
(Barnes v. United Parcel Serv., Inc., 395 S.W.3d 165, 173 (Tex.App.—Houston [1st Dist.] 2012, pet. denied);
Whallon v. City of Houston, 462 S.W.3d 146, 155–56 (Tex. App.—Houston [1st Dist.] 2015, pet. denied)).
DAMAGES
The Plaintiff had to file for bankruptcy twice (DMSJ, EXHIBIT G-H) to prevent illegal foreclosures by the movants, significantly damaging her credit rating (EXHIBIT DBCREDITKARMA-MSJ) and affecting her modest fixed income.
She incurred unnecessary court costs and related expenses (EXHIBIT DBHCDCCOURTCOSTS-MSJ), including travel and postage, as well as mental anguish due to severe stress, fear of losing her home, and anxiety about eviction
(McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463, 482 (5th Cir. 2015)).
The barrage of unsolicited foreclosure notices (EXHIBIT DB5-MSJ) exacerbated her anxiety, particularly during a challenging seasonal period with limited vendor availability and court hours.
Since November 2023, Plaintiff has experienced substantial disruption to her daily routine due to Defendants’ extreme conduct.
She filed for bankruptcy in two cases:
(i) Joanna Burke (23-35083), Doc. 1, Fee Amount $313 (DMcKinnieRichardson, Entered: 12/28/2023);
and
(ii) Joanna Burke (24-30885), Doc. 1, Fee Amount $313 (ShannonHolden, Entered: 03/01/2024).
Verified evidence of damages has been provided, with more testimony expected once she recovers from heat-stroke
(See; “Plaintiff’s Reply to Response to Motion, Doc. 32, Sep. 25, 2024).
Plaintiff is also entitled to statutory damages.
The second unlawful foreclosure attempt continued this pattern of harassment, including Mackie Wolf falsely claiming on their website that Plaintiff’s home had been sold, necessitating her to send another demand, this time for rescission (EXHIBIT DBVOID-MSJ).
This caused further emotional distress and additional costs related to understanding complex state and federal laws.
The Defendants’ actions have not only disrupted Plaintiff’s daily life but are also regarded as atrocious elder abuse targeting a medically challenged widow.
They are fully aware of their wrongful acts, as acknowledged in their documented motion.
COUNT I: Texas Constitution
Despite movants assertions otherwise, the Texas Constitution is implicated and does apply in these proceedings.
See; TAC, p.476, including the statement “Joanna Burke, a confirmed victim of a predatory loan, is being illegally foreclosed and will be forcefully evicted in violation of her constitutional rights”).
It was uniquely extended by the judiciary to specifically protect homeowners from predatory lenders such as Defendants. Article XVI, section 50 of the Texas Constitution pertains to “Protection of homestead from forced or unauthorized sale; exceptions; requirements for mortgage loans and other obligations secured by homestead.”
Tex. Const. art. XVI, §50 it applies to these proceedings and it is not barred by res judicata for the facts and reasons provided generally in this response and applicable here.
In support, the Jones case (EXHIBIT DBJONES-MSJ) provides the perfect real-life example of the Texas Constitution protecting distressed and maligned homeowners, with supporting facts as to the predatory and abusive history of the Defendants (at 7-11) when assessing financial damages and discharging the void lien.
See; “The Jones fall Victim to the Bank Defendants’ Misconduct” (headline at p.5(13)).
In light of this, Plaintiff’s Count I should be allowed to proceed against PHH.
COUNT II: Malicious Use of Process / Abuse of Process
Overview:
Defendants argue that Plaintiff’s claim related to the foreclosure is barred by res judicata, citing Hammervold v. Blank, 3 F.4th 803 (5th Cir. 2021).
However, res judicata does not apply here.
Misinterpretation of Parties:
The Defendants refer to “PHH predecessors seeking foreclosure judgment.”
Since 2011, the Defendants have consistently identified DBNTCO as the trustee and Ocwen Loan Servicing, LLC, and PHH Mortgage Corporation as the mortgage servicers.
The expired judgment was in favor of DBNTCO, with no predecessor involved.
No Post-Judgment Claims:
Plaintiff is not conjuring new claims; instead, she asserts that DBNTCO’s foreclosure judgment is time-barred under the four-year statute of limitations, rendering any subsequent actions void.
Relevant Timeline:
PHH initiated non-judicial foreclosure while Plaintiff’s appeal was pending (TAC, p.405; DMSJ, Exhibit E).
Attorney Mark Cronenwett confirmed instructions to issue a foreclosure notice for January 2, 2024 (EXHIBIT DB1-MSJ; TAC, p.412).
Despite being formally notified (EXHIBIT DB4-MSJ) that the statute of limitations had expired, Cronenwett refused to cancel the sale (EXHIBIT DB6-MSJ).
This refusal is supported by Deutsche Bank Nat’l Trust Co. v. Ketmayura No. A-14-CV-00931-LY-ML (W.D. Tex. June 11, 2015), where a time-barred mortgage was released (EXHIBIT DB1MRELEASE-MSJ).
Legal Basis
Improper Use of Process:
Defendants knowingly pursued foreclosures based on a time-barred judgment.
Their long experience in foreclosure law suggests they should be aware of these legal limitations (EXHIBIT DB1MRELEASE-MSJ).
Ulterior Motive:
Defendants’ foreclosure actions continued despite ongoing litigation in federal court and formal objections from Plaintiff (TAC, p.405; DMSJ, Exhibit E).
This indicates a planned scheme to foreclose illegally.
Damages:
The timing of the foreclosure notice was intentionally harmful, targeting Plaintiff during the holiday season (EXHIBIT DB1-MSJ). Plaintiff incurred significant time and costs defending against the foreclosures, ultimately leading to personal bankruptcy filings (DMSJ, EXHIBIT G and H).
The damages awarded in the Jones case further substantiates the criminality of the Defendants behavior (EXHIBIT DBJONES-MSJ p.33 at 57-59) and necessitates a separate DAMAGES section included in this response as incorporated herein.
Conclusion:
The Defendants’ actions constitute an illegal and improper use of legal process, as they relied on a time-barred deficient judgment to initiate foreclosure proceedings.
Therefore, Plaintiff’s claim should survive, and the lien should be formally voided from Harris County real property records (EXHIBIT DBMORLOCK-MSJ).
The record reflects systemic abuse by Defendants, evidenced by substantial fines in the past, highlighting an ongoing pattern of illegal tactics in their foreclosure practices, and continuing here.
COUNT III: Conspiracy
Defendants’ arguments at 37 (DMSJ) consist of ad hominem attacks and unfounded claims that disregard relevant case law, including the time-barred PNC case involving Defendants counsel.
At 39, Defendants claim that (i) Plaintiff’s conspiracy claim is barred by res judicata and (ii) the TAC lacks substantive arguments. Both assertions fail for the reasons stated in Counts II and IV. Specifically:
Two or More Persons:
This element is satisfied by the listed Defendants/Co-Conspirators: DBNTO, PHH, AVT, Mackie Wolf, Judge Craft, Judge Palmer, Prince, Mark. Hopkins, Shelley Hopkins, Hopkins Law, PLLC, John Doe, and Jane Doe (including Cronenwett and Frame of Mackie Wolf for AVT).
Object to Be Accomplished:
The conspiracy’s aim was to illegally foreclose on Joanna Plaintiff’s home, with the objective of making her a tenant-in-sufferance or evicting her.
Meeting of Minds:
Documented in the TAC, the conspiracy’s evolution began with the first foreclosure initiated after a rejected private settlement offer (EXHIBIT DB3-MSJ).
This includes actions such as the denial of a TRO by conflicted Judge Craft, the refusal of Clerk Prince to accommodate Plaintiff’s disability, and Cronenwett’s refusal to cancel the foreclosure despite knowing the judgment had expired (EXHIBIT DB6-MSJ).
Unlawful, Overt Acts:
The Defendants attempted to illegally foreclose not just once, but twice.
Even if the judicial order (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) were valid, the first notice of foreclosure (EXHIBIT DB1-MSJ) was deficient, indicating $0.00 owed. When this was highlighted to Cronenwett (EXHIBIT DB4-MSJ), he still refused to halt the sale (EXHIBIT DB6-MSJ).
Damages as a Proximate Result:
Refer to the “Damages” section above, which is incorporated herein..
Drive-By Hit and Run: Judge Ewing Werlein Jr Defies Courts’ Own Precedent to Absurdly Invent Jurisdiction
The Southern District of Texas Houston Federal Court Scandals mount as this case presents a further example of Judicial Activism from the bench. https://t.co/8crowjUfsh pic.twitter.com/kssl3B3V4a
— lawsinusa (@lawsinusa) October 9, 2024
COUNT IV: Fraud
Defendants assert at 41 that Plaintiff (i) “fails to point to any ‘misrepresentation’ made by PHH”; (ii) “Burke’s fraud claim is clearly barred by res judicata”; and (iii) “the fraud claim fails to meet the standards of the Federal Rules and is barred by the economic loss doctrine,” expanding on these arguments at 42-44.
Response to (i): Actionable fraud requires:
1. Material Misrepresentation:
The Defendants initiated nonjudicial foreclosures that were time-barred and based on a deficient foreclosure order (DMSJ, Exhibit B; EXHIBIT DB2-MSJ), failing to provide proper notice (EXHIBIT DB1-MSJ), as detailed in the TAC (p.396).
2. Knowledge of Falsehood:
Defendants’ agent, Mark Cronenwett, understood that the nonjudicial foreclosures were untimely and illegal based on his experience (Ketmayura: EXHIBIT DB1M-RELEASE-MSJ). Despite this knowledge, he and the other Defendants maintained false assertions (EXHIBIT DB6-MSJ) when confronted by Joanna Burke (EXHIBIT DB4-MSJ).
3. Intent to Induce Action:
The Defendants intended for Joanna to act on their misrepresentations. Joanna’s documented actions in the TAC (p.396-399; p.405+) show that she halted each of the two illegal foreclosures, incurring unnecessary costs and expenses (first at p.408+; second at p.442+).
4. Justifiable Reliance and Injury:
Joanna justifiably relied on the misrepresentations and suffered injuries as a result, as demonstrated in the TAC. See the “Damages” section above, incorporated herein.
Response to (ii): Res Judicata Does Not Apply: As detailed in the Res Judicata section, it does not apply to the fraud claim. Plaintiff first became aware of the initial attempt to illegally sell her home in November 2023, well within the four-year statute of limitations for fraud claims per TEX. CIV. PRAC. & REM. CODE §16.004(a)(4).
Response to (iii):
Federal Rules Standards:
Plaintiff has met the standards of “the who, what, when, and where” as established in Williams v. WMX Technologies, Inc., 112 F.3d 175, 178 (5th Cir. 1997). The relevant details are as follows:
The First Fraudulent Attempt to Foreclose (the January 2, 2024 Sale)
Who:
Mark Cronenwett, attorney for Mackie Wolf, representing AVT Title Services, LLC, the substitute trustee appointed by the movants.
What:
A deficient Notice of Foreclosure Sale (see Exhibit DB1, TAC, p.502-504; EXHIBIT DB1-MSJ). Further details are provided in the TAC starting at p.411, under the headline “Unlawful Sale Proceedings Despite Notice and Acknowledgment.”
When:
Plaintiff sent a letter to Cronenwett on December 3, 2023, requesting the cancellation of the nonjudicial foreclosure scheduled for January 2, 2024. She also emailed a copy of this letter along with her lis pendens (EXHIBIT DB4, TAC, p.509-514; EXHIBIT DB4-MSJ) to AVT’s counsel. That evening, Cronenwett identified himself in an email response (EXHIBIT DB6, TAC, p.519; EXHIBIT DB6-MSJ), refusing to cancel the scheduled illegal sale (see TAC, p.412).
Where:
Harris County, Texas, USA..
The Second Fraudulent Attempt to Foreclose (the March 5, 2024 Sale)
Who:
Mark Cronenwett, then lawyer for Mackie Wolf representing AVT Title Services, LLC, substitute trustee appointed by movants;
What:
The March Foreclosure Sale, see; TAC, p.442-444, starting at headline; “The Second Illegal Notice of Foreclosure Sale”;
When:
Tuesday, March 5, 2024 (stopped by filing second bankruptcy petition on March 1, 2024, see TAC p.442; DMSJ, EXHIBIT H);
Where:
Harris County, Texas, USA.
Finally, Plaintiff is not “barred by the economic loss doctrine”, expanding this argument at 42-44.
This has been answered with particularity below, in Count V and incorporated herein.
COUNT V: Infliction of Emotional Distress
The Defendants outline the claim requirements at 45 and assert at 46 that “the right to foreclose” precludes this count, concluding that “Burke’s fraud claim is barred by these standards.”
They fail to address the landmark case involving the same Defendants (DBNTCO and Ocwen (“PHH”)), which resulted in a judgment for Quiet Title to Property, approximately $600k for mental anguish, $2.5M in exemplary damages, and $400k in legal fees.
Defendants argue that “Though Burke attempts to circumvent the economic loss rule by alleging exemplary damages, the Fifth Circuit has found that pleading mental anguish and other non-economic damages is ‘generally insufficient to avoid the economic loss rule.’
Colbert v. Wells Fargo Bank, N.A., 850 F. App’x 870, 876 (5th Cir. 2021).”
However, this misinterprets the term “generally,” indicating that the economic loss rule does not apply uniformly in all cases, as seen in Sam v. Wells Fargo Bank, N.A., Civil Action 4:15-cv-03194, at *22-23 (S.D. Tex. July 15, 2016).
Moreover, the Plaintiff asserts that the Colbert decision predates the Consuelo Jones and Gabriela Jones case (Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV, Tex. App., filed Sep. 19, 2019) (EXHIBIT DBJONES-MSJ).
This case provides supporting evidence, including the lower court’s amended judgment and findings against Ocwen (PHH), et al.
The case settled around Apr. 18, 2024, and appeal dismissed by mandate on June 26, 2024.
Texas courts have recognized that claims from wrongful or time-barred foreclosure and fraud can proceed despite the economic loss rule.
While this rule limits recovery for purely economic losses in contractual relationships, Plaintiff’s claims of time-barred foreclosure involve tortious conduct, specifically fraud, allowing for damages beyond mere economic losses, thus highlighting the inadequacy of Defendants’ argument.
CitiMortgage, represented by Bandit Texas Lawyer Shelley Hopkins, corruptly tried to bypass a clear grace period in a loan agreement, ignoring legal precedent. Fifth Cir. Judge Ho slammed their atextual plea, reminding her Citi was a repeat-offender: https://t.co/GqA8ulwcfr pic.twitter.com/d0MBguEikH
— lawsinusa (@lawsinusa) October 9, 2024
COUNT VI: Mental Anguish
Defendants claim the Plaintiff mislabeling her mental anguish damages as a separate cause of action is erroneous.
This should instead be viewed as a sub-heading under the Infliction of Emotional Distress.
Their argument that the Plaintiff should be barred from recovering damages for mental anguish is unfounded.
In Miguel v. McLane, No. 22-10517, at *8 (5th Cir. Feb. 23, 2024), the court held that pro se complaints must be liberally construed, allowing consideration of amendments to the original complaint.
Thus, the mislabeling does not preclude Plaintiff from seeking damages for mental anguish, as her intent to assert a claim for emotional distress is clear.
COUNT VII: Texas Debt Collection Act
The Movants present three defenses: 48 res judicata, 49 right to foreclose, and 50 damages, all of which lack merit given Plaintiff’s claims under the Texas Debt Collection Act (TDCA).
The Fifth Circuit in McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015), found that threatening foreclosure without the right to do so is actionable under the TDCA.
Here, Defendants lacked the right to foreclose due to the statute of limitations and the expired judgment discussed throughout this response.
Contrary to the assertion at 49 that “Burke cites to no specific provision of the TDCA allegedly violated,” Plaintiff identifies two provisions in her TAC:
Tex. Fin. Code §392.301(3) (threat of foreclosure involving AVT/Mackie Wolf/Mark Cronenwett, p.411-422) and Tex. Fin. Code §392.403(a)(2) (damages, p.488).
This aligns with Verdin v. Fed. Nat. Mortg. Ass’n, 540 Fed. Appx. 253 (5th Cir. 2013), which states that a misrepresentation under the TDCA requires a false or misleading affirmative statement.
Defendants’ reference to Rucker v. Bank of Am., N.A., 806 F.3d 828, 831 (5th Cir. 2015), is irrelevant here, as the purported mortgage is effectively expunged, rendering the lien void.
In late 2023, while Defendants attempted unlawful non-judicial foreclosures via AVT Title Services, the Consumer Financial Protection Bureau (CFPB) released an advisory opinion clarifying the TDCA’s protections against illegal actions by non-banks and foreclosure mills.
Plaintiff’s TAC at p.404 ensures her causes of action are rooted in Texas law, as confirmed in Tex. Health & Human Servs. Comm’n v. Kadia, No. 03-23-00100-CV, at *18-19 (Tex. App. June 28, 2024).
Although the FDCPA is not part of Plaintiff’s complaint, the CFPB’s opinion supports the unlawful nature of PHH Mortgage Corporation’s actions in attempting foreclosure despite a void judgment and expired power of sale.
Defendants’ reliance on Rucker is misplaced, as it pertains to defaults, not time-barred foreclosures.
Therefore, Plaintiff’s TDCA cause of action, aimed at protecting consumers from abusive practices, is actionable in either venue (see CFPB 12 CFR Part 1006, Regulation F; EXHIBIT DBCFPBTIMEBARRED-MSJ).
Additionally, in relation to 50, damages, see DAMAGES section incorporated herein.
COUNT VIII: Quiet Title: Trespass to Try Title
In Count VIII of Plaintiff’s TAC (p.489, Doc. 1-4), she asserts claims for quiet title and trespass to try title, with legal authority discussed from p.489-491.
The specific claim is detailed further in TAC (p.470-473) and expanded upon in her Verified Partial Motion for Summary Judgment (“PMSJ,” p.565-588; EXHIBIT DBPMSJ-MSJ).
“Summary judgment must favor the non-movant; the movant must prove entitlement to judgment as a matter of law.” Hardaway v. Nixon, 544 S.W.3d 402, 410 (Tex. App.-San Antonio 2017, pet. denied).
Movants argue Plaintiff has made only a “superior title” claim (at 52(2)), neglecting her time-barred statute of limitations claim (at 52(3)).
They only mention adverse possession in passing and fail to address “abandonment” (at 52(4)), thereby waiving rebuttal on these points.
As established, “a party is not entitled to a final summary judgment on the entire case if it fails to address claims in an amended petition. ”
Silver Gryphon, LLC v. Bank of N.Y. Mellon, 529 S.W.3d 595, 598 (Tex. App.—Houston [14th Dist.] 2017, no pet.).
Movants cite Brumley (at 52), where the Texas Supreme Court emphasized substance over form in quiet title and trespass to try title actions. Here, Plaintiff has “sufficiently pleaded a trespass-to-try-title action by adverse possession” – Brumley v. McDuff, 616 S.W.3d 826, 836 (Tex. 2021).
The elements include:
· Plaintiff has exclusively occupied the property since 2001.
· Deutsche Bank National Trust Company claims a right to the property through foreclosure.
· Plaintiff has continuously possessed and enjoyed the property without adverse claims since 2001 (TAC p.470, Exhibit DB15, p.544-546; EXHIBIT DB15-MSJ).
· Plaintiff has visibly appropriated the property, claiming it as her own, hostile to all others’ claims, including Deutsche Bank’s.
· Deutsche Bank has had actual notice of Plaintiff’s claim since at least 2011.
· Plaintiff’s possession predates this action by over ten years.
Moreover, Plaintiff has a separate claim for quiet title, acknowledged by Defendants (54).
Recently, Judge Drew Tipton voided a similar lien in Morlock, LLC v. Petteway, Civil Action 4:21-CV-03202 (S.D. Tex. Sep. 23, 2024) (EXHIBIT DBMORLOCK-MSJ).
This case parallels Plaintiff’s claims, highlighting that “the nature of Morlock’s claim is one to quiet title” based on the invalidity of the defendant’s claim. Movants’ contentions lack legal foundation.
Applying Judge Tipton’s elements to this case:
· Plaintiff has an interest in 46 Kingwood Greens Dr., Kingwood, Texas (Doc 1-4, p.545).
· Title is affected by Deutsche Bank’s time-barred foreclosure attempts.
· The claim is invalid because the judgment of foreclosure was issued over four years ago (Nov. 29, 2018), making it time-barred and the power of sale expired (Doc 1-4, Exhibit DB2, p.505-507; EXHIBIT DB2-MSJ).
Additionally, the foreclosure order is invalid for reasons outlined in the TAC and this response.
The first notice of foreclosure (EXHIBIT DB1-MSJ) was deficient, lacking a legal description of the property and value of any alleged indebtedness (TAC, p.406).
Other cases support Plaintiff’s claims:
· Bryant v. DiTech Fin., No. 23-10416, at *6 (5th Cir. Mar. 1, 2024): “What it [Defendants] cannot do is win… without ever protecting its rights” (Doc 1-4, p. 472).
· Kafi, Inc. v. Fairgate Tr., Civil Action H-23-4217, at *7 (S.D. Tex. Aug. 15, 2024): “Summary judgment is granted for Kafi on its claims for quiet title.”
· Cross v. The Bank of N.Y. Mellon, No. 21-20384, at *3 n.3 (5th Cir. Apr. 8, 2022): Emphasized the absence of a legal impediment preventing the lender from preserving its foreclosure remedy.
In conclusion, Defendants’ motion for summary judgment should be DENIED.
They have not adequately addressed Plaintiff’s claims, failing to meet Rule 56(a) standards.
There are genuine disputes of material fact, and they are not entitled to judgment as a matter of law.
As stated in Ayala v. Aransas Cnty., CIVIL ACTION No. 2:15-CV-335, at *20 (S.D. Tex. Nov. 9, 2016), “Defendants failed to specifically address Plaintiff’s claims in their motion for summary judgment,” further supporting the need for denial of the motion.
INJUNCTIVE AND DECLARATORY RELIEF
Declaratory relief is available in these proceedings. The TAC (p.498-499) notes that DBNTCO specifically sought similar relief in 2011 (EXHIBIT DB16-MSJ at 8). Supporting this, declaratory relief was awarded to Gabriella and Consuelo Jones (EXHIBIT DBJONES-MSJ).
Contrary to the Bank Defendants’ arguments, declaratory relief is available to assess the validity of notes and liens under the Texas Constitution, even if it implicates property title (Cadle Co. v. Ortiz, 227 S.W.3d 831, 837–38 (Tex. App.—Corpus Christi—Edinburg 2007, pet. denied)).
Homeowners can seek declaratory relief regarding the invalidity of a lien (Schmidt v. Crawford, 584 S.W.3d 61:10, 656 (Tex. App.—Houston [1st Dist.] 2019, no pet.)).
Section 37.004 of the TDJA permits “a person interested under a deed” to seek a determination of any question of construction or validity arising under the instrument (Porterfield v. Deutsche Bank Nat’l Tr. Co., No. SA:16-CV-105-DAE, 2016 WL 5017344, at *7 (W.D. Tex. Sept. 19, 2016)).
See also EXHIBIT DBMORLOCK-MSJ.
DECLARATION
Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. §1746.”, I hereby provide my unsworn declaration. My name is Joanna Burke, …, and I declare under penalty of perjury that all information herein is true and correct.
CONCLUSION
The order of foreclosure (DMSJ, Exhibit B; EXHIBIT DB2-MSJ) and power of sale has expired and the lien is void. The movants Motion for Summary Judgment should be DENIED.
RESPECTFULLY submitted this 3rd day of October, 2024.
CERTIFICATE OF WORD COUNT
I, Joanna Burke, hereby certify that this RESPONSE TO PHH MORTGAGE CORPORATION’S MOTION FOR SUMMARY JUDGMENT, submitted on October 3, 2024, complies with the 5,000 word limit set by the Court. The document contains a total of 4,992 words, as calculated by Microsoft Word.
Notably; Defendants oversized and unauthenticated motion for summary judgment does not comply, supersized at 7,330 words (147%). There is no leave to file an oversized brief present on the docket, nor a certificate of word count in Defendants deficient motion, see Court Procedures, Hon. Charles R. Eskridge III, 18c.
FINANCIAL CRISIS
“Federal and state regulators and prosecutors have determined that Deutsche Bank, Ocwen, and Homeward have engaged in systematic mortgage fraud and abuse for years, before, during and after all relevant times to the claims made in the lawsuit.” Texas Judge: 2024 pic.twitter.com/caKa5Nthuc— lawsinusa (@lawsinusa) October 8, 2024
BREAKING NEWS REPORT FROM LIT COMING UP:
“Our Framers understood that government was inclined to advance its own interests, even to the point of ham-fisted bullying, which is precisely why the Constitution was written—to keep government on a leash, not We the People.” pic.twitter.com/qGLaIQCo8T— lawsinusa (@lawsinusa) October 8, 2024
The ongoing fraud and corruption by PHH Mortgage Corporation, and their bandit counsel continues.
Notice of Criminal Activity by Officers of the Court in Grabner v. Freedom Mortgage Corporation
Attn: Judge Andrew Hanen (c/o Case Manager Rhonda Hawkins, and copying all counsel for transparency)
I am writing to bring to your attention concerning developments in the case of Grabner v. Freedom Mortgage Corporation (Case No: 4:24-cv-00915) currently before your court.
During a recent live-streamed session on X’s social media platform, hosted by LIT (Laws in Texas) concerning the aforementioned case and related matters, significant concerns regarding potential criminal activity by officers of the court have come to light. Specifically, it has been observed that the attorneys representing Freedom Mortgage Corporation, Bradley Conway and Dustin George, in their motion to dismiss, have neglected to address glaring evidence of real estate fraud and non-disclosure which contravenes the terms of the non-exempt property loan in question.
Of particular concern is the ongoing fraudulent and unethical conduct allegedly perpetrated by sanctioned Texas lawyer Robert Clarence Newark and his client Roderick Kagy, as evidenced by documents in the Harris County real property records, including a “JV” agreement between the homeowner(s) and Kagy, trading under the alias “My Fresh Start, LLC.”
Further details regarding these matters have been extensively covered in LIT articles, including the most recent publication titled;
“14 Years of Carnage and Corruption”
https://lawsintexas.com/pr/32x
Additionally, specific information regarding the Grabner case and its implications can be found in the article;
“It’s a Home Grab in Kingwood Texas”
https://lawsintexas.com/pr/2v4
It should be recognized that I, Mark Burke, as founder of Blogger Inc., and an investigative journalist, am actively documenting and providing updates on these instances of alleged fraud and unethical practices to both the courts and relevant government agencies, as well as to the media through my premier blog at LawsinTexas.com (LIT). Given the gravity of the situation, LIT asserts that this constitutes a criminal matter – as it reaches far beyond the current proceedings -warranting immediate attention, publication, and notification. Many of these associated cases are published on LIT. However, if you have any direct questions, please do not hesitate to contact me.
I respectfully request and urge the court consider this notice seriously and take appropriate action to ensure the integrity of the legal process. In the interim, LIT will ensure the public, press and government agencies are made aware of this complaint.
Thank you for your attention to this matter, and acknowledgment of this formal written complaint by investigative journalist Mark Burke, on behalf of non-profit Blogger Inc., and it’s Texas-based blog at LawsinTexas.com.
Sincerely,
Mark Burke
Justice Seeker
Laws In Texas
#restoretx
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ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons.
Initial Conference set for 7/12/2024 at 02:30 PM in Room 11521 before Judge Ewing Werlein, Jr.
(Signed by Judge Ewing Werlein, Jr)
Parties notified.(DanielBerger, 4) (Entered: 03/13/2024)
U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:24-cv-00897
Burke v. PHH Mortgage Corporation et al Assigned to: Judge Ewing Werlein, Jr
Cause: 28:1332 Diversity-Injunctive & Declaratory Relief |
Date Filed: 03/12/2024 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Diversity |
Date Filed | # | Docket Text |
---|---|---|
03/12/2024 | 1 | NOTICE OF REMOVAL from 11th Judicial District Court of Harris County, Texas, case number 2023-86973 (Filing fee $ 405 receipt number ATXSDC-31316463) filed by PHH Mortgage Corporation. (Attachments: # 1 Exhibit A, # 2 Civil Cover Sheet B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Hopkins, Mark) (Entered: 03/12/2024) |
03/13/2024 | 2 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 7/12/2024 at 02:30 PM in Room 11521 before Judge Ewing Werlein, Jr. (Signed by Judge Ewing Werlein, Jr) Parties notified.(DanielBerger, 4) (Entered: 03/13/2024) |
03/13/2024 | 3 | NOTICE to Pro Se Litigant of Case Opening. Party notified, filed. (DanielBerger, 4) (Entered: 03/13/2024) |
03/14/2024 | 4 | NOTICE of Appearance by Shelley L. Hopkins on behalf of PHH Mortgage Corporation, filed. (Hopkins, Shelley) (Entered: 03/14/2024) |
03/19/2024 | 5 | Emergency MOTION to Remand integrating memorandum and brief in support by Joanna Burke, filed. Motion Docket Date 4/9/2024. (Attachments: # 1 Proposed Order) (AaronJackson, 4) (Entered: 03/19/2024) |
PACER Service Center | |||
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Transaction Receipt | |||
03/20/2024 07:03:57 |
ORDER
The motion of appellant for an extension of time to file a petition for rehearing is granted.
Appellant may have until June 14, 2024 to file a petition for rehearing.
No further extensions will be granted.
Electronically-filed petitions for rehearing must be received in the clerk’s office on or before the due date.
The three-day mailing grace under Fed.R.App.P. 26(c) does not apply to petitions for rehearing.
March 19, 2024
Order Entered at the Direction of the Court:
Clerk, U.S. Court of Appeals, Eighth Circuit.
/s/ Michael E. Gans
Davis v. Galagaza
DO NOT DOCKET. CASE HAS BEEN REMANDED
(4:19-cv-03119) District Court, S.D. Texas Judge Werlein to Judge Atlas
Case removed: Aug 20, 2019 – Case remanded: Sep 30, 2019
It is 41 days from the start date to the end date, but not including the end date.
Or 1 month, 10 days excluding the end date.
Hanson DO NOT DOCKET. CASE HAS BEEN REMANDED.
(4:14-cv-00306), District Court, S.D. Texas
by MJ Smith Opinion affirmed byHittner.
Case removed: Feb 7, 2014 – remanded: May 23, 2014
It is 105 days from the start date to the end date, but not including the end date.
Or 3 months, 16 days excluding the end date.
Azhar v. Dalio Holdings I, LLC
DO NOT DOCKET. CASE HAS BEEN REMANDED.
District Court, S.D. Texas, Judge Hittner
Case removed: Jul 5, 2018 – remanded: Jan 24, 2019
It is 203 days from the start date to the end date, but not including the end date.
Or 6 months, 19 days excluding the end date.
Texas Judge: Y’all are Criminals
“Deutsche Bank is a fiduciary under Section 32.45, Texas Penal Code and OCWEN are attorneys-in-fact. As a result, the limitation on the amount of punitive damages set forth in Section 41.008, Texas Civil Practice & Remedies Code does not apply.” pic.twitter.com/QPJLIAhdvO— lawsinusa (@lawsinusa) October 8, 2024
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