Federal Judges Invent Jurisdiction to Issue Lawless Writ of Execution Aimed at 86-Yr Old Widow

STATEMENT OF FACTS

On Thursday, Jan. 23, 2025, MJCAB issued a collective set of three Orders and three Memorandum and Recommendation(s) (“M&R”) [ECF 54, 55, 56, 57, 58 and 59].

The court also filed three of Plaintiff’s “lost” or “missing” pleadings which were backdated to Nov. 15, 2024 [ECF 51, 52 and 53].

Relevant here: Plaintiff’s Nov. 15 Pleading 53, and court Order 56 which cites to the M&R 57.

The M&R recorded as ECF 57 provides a curt summary of her reasons why this court maintains jurisdiction over these proceedings.

For reasons explained in the Argument section below, the recommendation should be fully rejected.

For the purposes of analysis, this leaves the operative pleadings which were considered in her M&R as ECF 33 [Plaintiff’s Motion to Dismiss]; ECF 42 [PHH Response]; ECF 43[Plaintiff’s Reply].

Justice Requires Full Argument and Fairness to All

In reversing this court, Fifth Circuit Judge James Ho recently stated:

“Our adversarial system of justice requires that we give both sides full and fair opportunity to present their strongest possible arguments to the court…

We agree with Anadarko that the district court failed to perform a full [] analysis.”

Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772, 775 (5th Cir. 2024, pub.)”

MJCAB has rejected this notion once more by failing to consider both sides of the argument and only considering PHH’s Response [42], for example, converting the motion to one for reconsideration was part of PHH’s response, as highlighted in Plaintiff’s Reply [43], which was not considered.

Furthermore, this contradicts Judge Werlein’s own opinion ECF 18, page 5 of 8,

“In her Motion to Remand, Plaintiff does not dispute this Court’s jurisdiction over her claims against Defendants.”.

STATEMENT OF THE ISSUES

Disclaimer: The Plaintiff submitted her timely objection(s) by ensuring they were filed directly with the clerk in compliance with the 14-day rule, confident that this court would not decide any pending motions prior to the expiration of this deadline, or before receipt of the objection(s).

1.         Whether the court should entirely reject the Magistrate Judge’s M&R [57], and/or stay these proceedings considering PLAINTIFF’S MOTION TO CERTIFY QUESTIONS TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT and PLAINTIFF’S MOTION TO STAY OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME RE ECF ENTRIES 51-60.

2.         Whether MJCAB should have addressed the Plaintiff’s arguments and reply, applying the same standard the Fifth Circuit held when eviscerating this court in Hager v. Brinker Tex., Inc., 102 F.4th 692, 697 (5th Cir. 2024), and considering the severity of the M&R’s final recommendation and the implications to the Plaintiff’s liberty and protected property rights.

3.         Whether the Magistrate Judge incorrectly relabeled the Plaintiff’s Motion to Dismiss for Lack of Jurisdiction as a Motion for Reconsideration.

4.         Whether the court agrees with Plaintiff insofar as the Magistrate Judge’s M&R and related Order constitutes an abuse of discretion, because she has willfully and knowingly defied the Fifth Circuit’s very recent admonishment by replicating the same conduct in this case, see:

Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.),

reversing this court for the same issue less than nine months ago.

5.         Whether this court agrees with Plaintiff that this case should be dismissed for lack of jurisdiction and remanded back to Harris County District Court.

APPLICABLE LEGAL STANDARDS

Objections, Timeliness and Standard of Review

U.S. v. Rodriguez, Criminal No. G-04-01, Civil Action No. G-06-459, at *3 (S.D. Tex. July 31, 2006)

(“Failure to file written objections to the proposed findings, conclusions and recommendations contained in this report within the allowed time SHALL bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court, except upon grounds of plain error or manifest injustice.”).

Reconsideration

A motion to reconsider an interlocutory ruling is governed by Federal Rule of Civil Procedure 54(b).

Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (2017).

A district court may reconsider an order “for any reason [a court] deems sufficient,” id., “even in the absence of new evidence or an intervening change in or clarification of the substantive law,”

Pfeiffer v. Ajamie PLLC, No. 4:19-cv-02760, 2020 WL 13420831, at *1 (S.D. Tex. Jan. 27, 2020).

Moreover, the “[c]lassic reasons for granting reconsideration” include that the order rests upon an erroneous factual basis.

Shih v. Blue Cross & Blue Shield of Tex. Inc., No. 4:21-CV-01530, 2022 WL 444476, at *1 (S.D. Tex. Feb. 10, 2022)

(noting that reconsideration is appropriate if “the judgment is based upon a manifest error of fact or law”).

Docket Filings Should Never be Backdated

Tulley v. Ethyl Corp., 861 F.2d 120, 123 (5th Cir. 1988) (“the judgment, signed December 24, 1987, was apparently entered on the docket sheet at the district court clerk’s office on December 29, and the defendants’ notice of appeal, filed January 27, 1988, was entered on the docket sheet on January 28…

The district court’s docket sheet in this case reveals that the order appealed from was not docketed until December 29, 1987, and the filing of the notice of appeal on January 27, 1988 was, therefore, within the 30-day requirement of F.R.A.P. 4(a)(1).”).

Judicial Integrity and Impartiality

Federal judges should always seek to promote confidence that they will dispense evenhanded justice.

See Canon 2(A), Code of Conduct for United States Judges (requiring judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

At its core, this judicial impartiality is “the lack of bias for or against either party to the proceeding,” which “assures equal application of the law.”

Repub. Party of Minn. v. White , 536 U.S. 765, 775–76, 122 S.Ct. 2528, 153 L.Ed.2d 694 (1992) (cleaned up);

see also, e.g., Buntion v. Quarterman , 524 F.3d 664, 672 (5th Cir. 2008)

(explaining that defendants’ “right to a fair trial” is in part “fulfilled by a judicial officer who impartially presides over the trial”)

(citing Bracy v. Gramley , 520 U.S. 899, 904–05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) )

…the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.

See , e.g. , United States v. Candelaria-Gonzalez , 547 F.2d 291, 297 (5th Cir. 1977)

(observing that a trial judge “must make every effort to preserve the appearance of strict impartiality,” including by “exhibit[ing] neutrality in his language”).

Even this appearance of bias, whether real or not, should be avoided.

– United States v. Varner, 948 F.3d 250, 256 (5th Cir. 2020).

ARGUMENT

MEMORANDUM AND RECOMMENDATION

“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).”

As recently as December 20, 2024, and in a published opinion, the Fifth Circuit remanded the “veteran litigant(s) [the Walden’s] proceeding pro se, opposed “U.S. Banks latest suit, filed on December 31, 2021, arguing that it had a right to foreclose pursuant to the final judgment the district court issued ” as part of [their] approximately 14-year effort to thwart foreclosure on residential property located in [San Marcos, Texas (Property).”,

and where

“in 2008, the Waldens executed a Texas Home Equity Note (“Note”) and Security Instrument (“Security Instrument”) in the amount of $316,800, and where it is undisputed that “the Waldens have been in default on the Loan Agreement since July 15, 2011.”

-MTGLQ Inv’rs v. Walden, A-19-CV-0992 RP, at *1-2 (W.D. Tex. Aug. 14, 2020).

See; U.S. Bank Tr. v. Walden, No. 23-50662, at *13 (5th Cir. Dec. 20, 2024)

(“Because the district court’s grant of summary judgment is contrary to controlling circuit precedent, we REVERSE the district court’s order granting summary judgment, VACATE the judgment it entered, and REMAND the matter to the district court for further proceedings consistent with Boren.”).

The Plaintiff has listed many more examples during these proceedings, all blanked by Magistrate Judge Christina A. Bryan.

She has also refused to acknowledge or discuss the millions of dollars in judgments, sanctions, fines and misconduct by PHH and their counsel in Texas, as well as former judges and clerks of this courthouse.

Prejudging the outcome of this case was clear upon reassignment and referral commencing with MJCAB’s first Order [31] released on September 18, 2024.

These facts are well-documented in Plaintiff’s pleadings relating to this motion but avoided in the purported M&R and Order(s), which at first blush could be confused with a filing by PHH.

In support, and as summarized in the Statement of Facts and Issues, Plaintiff notes MJCAB provided a curt opinion as to why Plaintiff’s motion should be DENIED, but only discusses PHH’s arguments, by snubbing Plaintiffs Response entirely [ECF 33].

MJCAB fails to address any of Plaintiff’s arguments with legal authorities in support

(See; Montes v. Tibbs, No. 24-20135, at *7-8 (5th Cir. Aug. 16, 2024)).

Plaintiff objects to the entire memorandum’s one-sided reasoning:

“The Court finds no reason to reconsider the June 17, 2024 Order denying Plaintiff’s Emergency Motion to Remand.”

Plaintiff denies and objects to the Magistrate Judge relabeling her Motion and additionally to her conclusion in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s motion [33] and reply [43].

“Contrary to what Plaintiff argues, subject matter jurisdiction existed in this Court at the time of removal.”

Plaintiff denies and objects to the Magistrate Judge’s assertion that subject matter jurisdiction existing “in this court’ at the time of removal in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s motion [33] and reply [43].

“Plaintiff contends this Court lacks subject matter jurisdiction because the case should have been removed to bankruptcy court rather than district court. Plaintiff is incorrect..”

Plaintiff denies and objects to to the Magistrate Judge’s assertion that Plaintiff is incorrect existing “in this court’ at the time of removal in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s motion [33] and reply [43].

“At the time the Court ruled on Plaintiff’s Emergency Motion to Remand, her bankruptcy proceeding…had been dismissed…”

Plaintiff denies and objects to the Magistrate Judge’s assertion that Plaintiff is incorrect existing ‘in this court’ at the time of removal in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s motion [33] and reply [43].

Additionally, the Magistrate Judge contradicts herself with frivolous arguments, as she agreed in her M&R [57], page 3 of 4;

“jurisdictional facts that support removal must be judged at the time of the removal”

citing Gebbia v. Wal-Mart Stores, Inc., 233 F.3d 880, 883 (5th Cir. 2000)).

“For these reasons, the Court RECOMMENDS that Plaintiff’s “Verified Motion to Dismiss for Lack of Jurisdiction” (ECF 33) be DENIED.”

Plaintiff denies and objects to the Magistrate Judge’s M&R – who follows PHH and Judge Werlein driving the wrong-way in a one-sided memorandum and recommendation – in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s Motion [33] and Reply [43].

The recommendation should be rejected.

As Plaintiff has discussed throughout these proceedings, including the objections by Plaintiff to these omnibus M&R’s and Orders, MJCAB’s reliance upon this court having jurisdiction is flawed, res judicata is inapplicable, and Judge Hittner’s 2018 order is invalid, void and time-barred as PHH “slept on [its] rights”

-Pie Dev. v. Pie Carrier Holdings, Inc., No. 24-60155, at *7 (5th Cir. Feb. 3, 2025).

MJCAB’s assertions otherwise are without merit and baseless.

See; PLAINTIFF’S MOTION TO CERTIFY QUESTIONS TO THE COURT OF APPEALS FOR THE FIFTH CIRCUITPLAINTIFF’S MOTION TO STAY OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME RE ECF ENTRIES 51-60.

(These latest motions with exhibit, proposed orders and cover letter were delivered by USPS Express Mail on Tuesday, Feb. 4, 2025 at 10.17 am and signed for by “T Hannibal” at 3.42 pm.).

As with all MJCAB’s Orders and M&R’s, the procedural due process violations are clear and obvious.

The Fifth Circuit has admonished this court and Magistrate Judge for the very acts repeated here.

In short, this litigation is meritorious, and PHH’s deficient, second motion has been granted improvidently, as it is moot.

After reviewing both the Motion [33] and Reply [43] along with PHH’s Response [42], Magistrate Judge Bryan has failed to address a single argument by Plaintiff.

(Compare with; Jones v. Heuer, No. 24-50348, at *2 (5th Cir. Oct. 14, 2024)

(“The magistrate judge (“MJ”) issued a report and recommendation (“R&R”) analyzing Jones’s numerous claims.”)).

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 … and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

For the reasons outlined above, the Plaintiff requests that the Court reconsiders MJCAB’s Order and Related Memorandum & Recommendation and grant the relief requested herein.

To the extent this court maintains the opinion it has jurisdiction in these proceedings, the District Judge should

(i) reject MJCAB’s M&R 57, or

(ii) stay the proceedings based on Plaintiff’s “Certified Questions” motion, or

(iii) remand for reevaluation based on the evidence and argument presented by Plaintiff, or

(iv) dismiss the case for lack of subject matter jurisdiction and remand to state court, and

(v) for any and all other relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 6th day of February, 2025.