Appellate Circuit

Fifth Circuit Deny Homeowners Motion to Stay in Burke v Ocwen Case, Despite US Supreme Court Selia Law Case

On Monday, 28th October, the Fifth Circuit Denied the Homeowners Motion to Stay care of an order by single Judge Patrick (no free houses) Higginbotham.

UPDATED; On Thursday, 19th December, 2019, the Fifth Circuit 3-Panel issued this Order Denying Homeowners Relief

SOUTHWICK, LESLIE H.

WILLETT, DON R.

HIGGINGBOTHAM, PATRICK E.

                             December 19, 2019                             

                                       

David J. Bradley, Clerk of Court

No. 19-20267 JOANNA BURKE; JOHN BURKE,

Plaintiffs – Appellants

v.

OCWEN LOAN SERVICING, L.L.C.,

Defendant – Appellee

Appeal from the United States District Court for the Southern District of Texas

Before HIGGINBOTHAM, SOUTHWICK, and WILLETT, Circuit Judges. PER CURIAM:

A member of this panel previously denied appellants’ opposed motion for reconsideration of appellants’ opposed motion to stay the case until the matter of the CFPB’s Constitutionality is answered by the United States Supreme Court and appellants’ opposed alternative request to stay the case for period of no less than nine (9) months. The panel has considered appellants’ opposed motion for reconsideration. IT IS ORDERED that the motion is DENIED.

On Monday, 28th October, the Fifth Circuit Denied the Homeowners Motion to Stay

MOTION TO STAY DENIED

Monday, 28th October, 2019 – The first opportunity after Florida’s denial late afternoon on Friday, the ‘Sister’ court – the 5th Circuit – rushed it’s own DENIAL out on Monday morning via Judge “No Free Houses” Higginbotham.

IT IS ORDERED that appellants’ opposed motion to stay case in Fifth Circuit awaiting a final rule or adjudication on the constitutional challenges is
DENIED. (STATE AND FEDERAL CONSTITUTIONAL CHALLENGES)

IT IS FURTHER ORDERED that appellants’ opposed motion to suspend briefing is DENIED. (SELIA LAW CASE MOTION)

RECENT HISTORY OF MOTIONS AND BRIEFS FILED BY THE APPELLANTS

Motion to Supplement the Pleadings filed on Sunday, 27th October, 2019

This motion took 3 days to prepare and it was denied by a Clerk at the 5th by lunchtime on Monday by the Fifth Circuit.

Appellants, Joanna Burke and John Burke (“Burkes”), now file this Supplemental Pleading and Supplement[s] to the Record.

Eleventh Circuit Grants Burkes Motion to Stay: On Friday, 25th October, 2019 Judge Beverly B. Martin for the 11th Circuit, reviewed and granted the APPELLANTS BURKES’ MOTION TO STAY PROCEEDINGS in their Intervenor appeal, Joanna Burke, et al, v. Ocwen Financial Corp., et al, 19-13015- D, Eleventh Circuit (re: FLSD).

Hopkins Law, PLLC Response is Outlandish: On Friday, 25th October, 2019 Hopkins [for Ocwen] submitted their RESPONSE IN OPPOSITION TO APPELLANTS’ CONSTITUTIONAL CHALLENGE AND APPELLANTS’ MOTION TO STAY.

The tortuous and unplumbed response by Ocwens’ [alleged] counsel seems to make several implausible arguments.

The Burkes responses and/or citations are below each heading;

(i)  The Burkes are Vexatious Litigants and The Burkes’ “Attacks on Counsel” are not Reason for an Abatement.

Hopkins believe they are entitled to the ‘claimed’ immunity of the President of the United States – “Even if President Donald Trump shot someone in the middle of Fifth Avenue, New York authorities could not punish him while he is in office, the president’s lawyers argued.”1 (A legal statement clearly based on ‘puffery’2).

However, they would be mistaken. The Burkes attach lower court document [Exhibit #Judges-Shot] explaining bad faith, maliciousness and fraud do not receive attorney immunity3 – well, at least in Ohio where they follow the rule of law and don’t raise impenetrable shields for all lawyers before them.4

 “Attacks on Counsel” since 2011

Hopkins stated; “As with all of the Burkes filings, the Burkes’ latest motions weave into their arguments continued caustic commentary that Ocwen’s attorneys herein are “rogue debt collectors”5 and scoundrels.

1 See Politico ARTICLE.
2 Carvelli v. Ocwen Fin. Corp., No. 18-12250 (11th Cir. Aug. 15, 2019); Judge Newsom’s definition for the 3-panel for the word “puffery”.
3 However, Hopkins claimed ‘attorney immunity’ is meritless, as it is invalidated, as they are proceeding “pro se” in the Burke v. Hopkins case. See Exhibit #Judges-Shot, in part, p. 8;
“The Parties are both ‘Pro Se’: The Burkes are pro se and Hopkins is pro se in this civil action. Neither can be awarded attorney fees. Neither can claim [attorney] immunity nor privilege at any status hearings, conferences, evidentiary or motion hearings or while presenting at a jury trial. Neither party is above the law.”
4 “There is no immunity, however, where attorneys act maliciously.” Vector Research, Inc. v. Howard & Howard Attorneys P.C., 76 F.3d 692, 700 (6th Cir. 1996) (citing Scholler v. Scholler, 10 Ohio St.3d 98, 462 N.E. 2d 158, 163 (1984)
5 See Motion to Remand [generally] and also, drill down to footnote 6 for a quick synopsis, ROA.198 re Hopkins failure to register with SOS and maintain a Surety Bond, and; ROA.197 discussing Hopkins is a debt collector per the ‘Act[s]’ e.g. FDCPA/TDCA and Hopkins admits his ‘main client is Deutsche and OCWEN is just an “agent”, ROA.204. This is a “shift” of position from Hopkins, who now claims to represent both equally, which is contractually unfeasible based on the separate attorney insurance and errors and omissions requirements for trustees and servicers as per the PSA(s).

 

The Burkes’ pattern of personal attacks6 against counsel is nothing new and dates back to the initial litigation which begin in 2011.”

Vexatious Litigants

This mischievous and calculated choice of legalese vocabulary by Hopkins has been addressed in both the Burkes lower court cases, Burke v. Ocwen and Burke v. Hopkins. It was also addressed in this appeal, and by expanding on the initial brief’s references to the record on appeal [lower court docket]. It quite clearly confirms the bad faith reasons why Hopkins repetitively uses words like ‘vexatious litigants, ‘baseless’ and ‘with prejudice’; it is a premeditated act.7

The Burkes case against Ocwen is the first time they have been pursuing relief in Texas court[s] against Ocwen. The Burkes are legally allowed to litigate as Texas residents and US Citizens.

Nonetheless, this is a right which Hopkins believes should be revoked immediately and is, besides, sufficient reason to find in their favor (for their ‘client’) in this appeal – because Hopkins object to the Burkes spoken and/or written words about opposing counsel.

It’s totally absurd.

Rogue Attorneys [Citation is sufficient]

 

6 On the contrary, see ROA.212+ where Hopkins states that the “Burkes are hiding income and assets” – another premeditated lie, a malicious and intentional act of bad faith that pierces his attorney immunity which he waived – see footnote 19 citing 5th cir., ROA.217.
7 See the Burkes reply brief heading at “3. REMOVAL TO FEDERAL COURT BY OCWEN (SDTX)” [p.18] and “5. THE SANCTIONABLE MOTIONS RESUME IN 2019” [p.22]

 

Unbonded debt collecting law firm[s] in Texas (with no surety bond as required by the State of Texas) e.g. Hopkins Law, PLLC, would fall squarely into this citation:

“In In re Lenahan, Gardin v. Lenahan, et al. 05-70108 MJK another “edge” was addressed. Rogue attorneys violated the FDCPA in attempting to collect their client’s debts. This Court ruled that damages arising from the wilful and malicious conduct of the attorney/debtors were non-dischargeable in their bankruptcy case.” In re Greason, Case No. 07-00357K, AP No. 07-1077 K, at *15 (Bankr. W.D.N.Y. Mar. 10, 2009).

Scoundrels [Citation[s] are sufficient]

“and even Abraham Lincoln’s8 scorn for scoundrels in courthouse basements” Arizona v. California, 460 U.S. 605, 645 (1983), and;

“The most he said was that “a number of scoundrels might be at risk.”” U.S. v. O’Dwyer, No. 10-30701, at *3 (5th Cir. 2011).

2011

Once again Hopkins is dishonest. They were not subject to the Burkes ‘caustic commentary’9 (which is described as ‘zealous advocacy’ by these attorneys and also by many Texas lawyers representing clients in courts. The Burkes assume the same description applies to pro se’s [e.g.

8 “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.” – Abraham Lincoln
9 “However, mere “sharp criticism,” “linguistic slings and arrows,” “unfair” statements, and
“caustic commentary” are not actionable as defamation. Id. at 276; see also Johnson v.
Delta-Democrat Publ’g Co., 531 SO. 2D 811, 814 (Miss. 1988) (“name calling and verbal abuse” are not actionable as defamation).” – Hayne v. Innocence Project, CIVIL ACTION NO. 3:09- CV-218-KS-LRA, at *14 (S.D. Miss. Jan. 20, 2011).

 

the Burkes].) since 2011. Mark Hopkins only arrived on the case in 2015, not 2011.10

(ii)  Attorneys are Entitled to Immunity to ensure ‘loyal, faithful, and aggressive representation by attorneys employed as ’11

Pro Se[‘s] Mark D. Hopkins, and Shelley L. Hopkins of Hopkins Law, PLLC [in Burke v. Hopkins proceedings, USDC No. 4:18-CV-4543] are not immune for acts of bad faith, maliciousness12 and fraud. See (i) above.

(iii)          The Constitutional Challenge is “Untimely”.

(a) This would beg the question, why did the Fifth Circuit issue the letter(s)13 to the respective AG’s if it was untimely; and

(b) Hopkins makes intentionally dishonest statements in the hopes they are accepted as true by this court and without referencing the

“…the Burkes still waived the issue on appeal because they failed to raise the issue in their initial brief filed with the Court.”

10 Hopkins was not counsel of record until after the bench trial and where the ruling of the lower court was in favor of the Burkes. See Doc. 79, 31st March, 2015. Mark D. Hopkins Notice of Appearance for Deutsche Bank. See Doc. 108, June 21, 2016. Shelley L. Hopkins Notice of Attorney Substitution, replacing BDF lawyer C. Jacocks [the bench trial attorney who lost the case] and who was ‘unofficially’ off the case. Jacocks was sent for a hotdog by his BDF  manager and never returned. It took a tardy 15 months for former BDF manager Shelley Hopkins to register with the lower court. Barefacedly defying court rules and protocols, Hopkins only registered after the Burkes [again] called out this disobedience at a conference hearing in front of former Judge Smith.
11 See ROA.232-233 “Hopkins Law and the Texas Lawyers Creed”.
12 See ROA.484 ‘The Hopkins case will determine if the evidence was maliciously withheld…”
13 See 19-20267, Document: 00515124011, Date Filed: 09/18/2019.

 

Below is one example, which confirm the Burkes Constitutional challenge[s] are not untimely, nor raised on the first time in this appeal;

“Despite several months seeking answers from the Office of the Attorney General (citing footnote 2014) pertaining to clarification of the legislation surrounding the surety bond, to this date they have refused to even directly acknowledge nor answer the citizens of the State’s questions, in breach of their RESPONSIBILITIES and Constitution.” – See initial brief; Case: 19-20267 Document: 00515032985 Page: 37 Date Filed: 07/14/2019.

Furthermore, in the Burkes reply brief, they merely expanded on the content and ROA of the Initial Brief, because Hopkins avoided addressing the Burkes arguments in the Initial Brief. As such, it cannot be claimed nor be treated as legally stated “for the first time”, when the Burkes are merely citing and elaborating on the initial brief’s content, e.g. “Expanding the Docket” and “Cataloging the Burkes omnibus response” [headings applied in the initial brief].

As such, it is legally correct for the Burkes refer to “(4) No Surety Bond for Hopkins Law, PLLC (Constitutional Challenge)” [p.21] of their reply brief.

(c) The Burkes have attached EXHIBIT #Hopkins-TFC-Texas-Gov. It includes the following;

i.  A letter dated May 8, 2019, which clearly is detailed and asks for direct answers to the constitutional questions now before the 2 AG’s in this case [and also asking if they could issue a

14 Judicially noticed case; Burke v. Hopkins (4:18-cv-04543) District Court, S.D. Texas, Doc. 27, p.90.

 

‘cease and desist’ against a law firm operating without a surety bond in Texas and/or other relief available. The Burkes also intimated they wished to “Make a Claim against an Uninsured and Unlicensed Debt Collector”. It was sent to;

Attn: Senior Counsel to the Attorney General & Senior Legislative Advisor to the Attorney General Office of the Attorney General, PO Box 12548, Austin, TX 78711- 2548

and with ‘Courtesy copies’ to;

  • Kyle Douglas Hawkins, Office of the Attorney General, Office of the Solicitor General (TX)
  • Christopher J. Deal, Senior Counsel (Litigation), Consumer Financial Protection Bureau (“CFPB”)
  • Colin Michael Watterson, Appleseed Foundation, Incorporated, Susman Godfrey, L.P.
  • Ilya Shapiro, , Cato Institute, Washington, D.C.
  • Allison M. Zieve for; Center for Responsible Lending, Consumer Federation of America, National Assoc. of Consumer Advocates, National Consumer Law Center, TZEDEK DC & US Public Interest Research, Group Education Fund, Public Citizen Litigation Group, Washington, C.
  • Oliver J. Dunford, Pacific Legal Foundation, Sacramento, CA

A copy of the earlier letter to the Finance Commission of Texas, dated 6 March, 2019 – Attn: Executive Director and a copy to; Office of the Attorney General Attn: Senior Counsel to the Attorney General & Senior Legislative Advisor to the Attorney General, and;

  • A copy of the request from TX SML to the TX OAG, dated 11 March, 2019. [“…a Public Information (Open Records) opinion from the Office of Attorney General (OAG) regarding the public information request we received from Joanna and John Burke (Requestors), on March 4, ”].
  1. See related responses herein and Conclusion below.

(iv)           At no time prior to September 18, 2019 did the Burkes contest the constitutionality of either the TDCA or the FDCPA.

See (iii) above.

Secondly, see ROA.442 and ROA.453, Question 21., explaining the Burkes were seeking information from TX SML specifically pertaining to the FDCPA and Texas Finance Code (“TFC” or “TDCA”) §392. Attorneys for TX SML responded after many months of communications and reminders from the Burkes. Ultimately, they deferred the ‘surety bond’ and relevant legislative questions to the TX OAG. The Burkes wrote directly to the OAG for answers, but who still refuse to this day to answer the questions raised.

The fact that Judge Hittner sideswiped the Burkes15 with a Roman Candle order [ROA.489] shortly after the 3-minute Scheduling Conference [ROA.1121] and remained silent on the Burkes request to certify an interlocutory appeal to this court [ROA.542] is also not within control of the Burkes. All this confirms the Burkes due diligence

15 See Joanna Burkes Affidavit, ROA.579 and John Burkes Affidavit, ROA.572 along with EXHIBIT #BINDEROCWEN, ROA.586.

at raising the Constitutional questions during the lower court proceedings.

(v)             The Burkes Arguments have “Shifted” and Grant of Certiorari in an ‘Unrelated Case’ is Irrelevant.

And Hopkins avers, this court should not ‘entertain’ them, “especially these new constitutional claims raised for the first time on appeal.”

Firstly, see (iii) and (iv) above.

Secondly, if one was to ‘entertain’ that extraordinary notion, then this statement would have to apply to their ‘clients’ [Ocwen’s] own arguments in the S.D. Florida lawsuit, where they cite the ‘unrelated and irrelevant case’ and seek to dismiss the civil action by the CFPB, with prejudice. And after an Order of Judge Marra, which included a ruling on the constitutional claims. Judge Marra [erroneously] ruled the CFPB is constitutional.16 As the Burkes have argued throughout this appeal, the Constitution is the ‘superior law’. As such, Hopkins claims are without merit.

Third, the Burkes arguments have not shifted. It was this very court, in the much-publicized case of Collins v. Mnuchin17, which effectively created this intense and new outbreak of activity at the US Supreme Court and in Circuits nationwide.

(vi)           The Burkes “musings over the perceived loss of federal question jurisdiction is beyond baseless”. 

16 Consumer Financial Protection Bureau v. Ocwen Financial Corporation et al., No. 9:17-cv- 80496 (S.D. Fla.)
17 Collins v. Mnuchin, No. 17-20364 (5th Cir. Sep. 6, 2019).

 

“The Court today holds that this Court and the federal courts below must refrain from exercising their jurisdiction to decide this lawsuit properly brought. It remands the case to the Court of Appeals and implies that a state court should be the  one  to  determine  two questions of    state    law     to     avoid     a  federal constitutional question which is also presented.” – Clay v. Sun Insurance Office, 363 U.S. 207, 213 (1960).

The Burkes argued in their briefs [and not for the first time] that the State Court is the correct and only domain that should hear the lower court case.

It would be a temerarious man who described the constitutional question decided below as frivolous.” – Clay v. Sun Insurance Office, 363 U.S. 207, 213 (1960).

This is cemented by the above US Supreme Court case. It also makes Hopkins arguments moot.

(vii)        The Burkes “argument that federal question jurisdiction can be stripped away “retroactively” (if a statute is struck down) is misplaced.

The Burkes rely upon their preceding answers and the conclusion below, nonetheless they wish to respond with two legal citations from this very court to the above statement;

First;

“(A) the applicant shows that the claim relies on a new rule of constitutional law, made RETROACTIVE to cases on collateral review by the SUPREME COURT, that was previously unavailable.” Preyor v. Davis, No. 17-70017, at *12 (5th Cir. Jul. 27, 2017); and

Secondly, a case ‘very close to home’ and although the Burkes vehemently disagree with this published precedent and statement, it shows the Fifths’ holding and reliance on a retroactive effective date;

“The fourth reason—that the assignment was backdated, listed as (D) above—is not supported by Texas law. At least two Texas Courts of Appeals have considered this very question, and both have held that an assignment may have a  RETROACTIVE “effective  date.” See  Transcon. Realty Inv’rs, Inc. v. Wicks, 442 S.W.3d 676, 680 (Tex. App.—Dallas 2014, pet. denied) (“Although assignments are usually effective on the date on which they are signed, there is no language in the lease which would require that the assignment only be effective upon execution.”); see also Crowell v. Bexar Cty., 351 S.W.3D 114, 118-19 (Tex. App.—San Antonio 2011, no pet.). – Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201, at *6 (5th Cir. 2016).

 

 A Lawyer’s Deception and Repetitive Dishonest Testimony

 (“the System”) Should be Rejected by this Court:

This latest filing by Hopkins [apparently on behalf of OCWEN] is extremely bizarre, but certainly proves the Burkes case. In the Deutsche case, Hopkins arrived at the Fifth Circuit by unlawfully withholding evidence18 (the mortgage/closing file

18 “BDF Hopkins also committed fraud and forgery in order to appeal the Deutsche Bank case, by withholding evidence, which was judicially noted in a response motion by the Burkes’ after Hopkins tried to modify the Fifth Circuit Judgment (footnote 21) and subsequently is documented in the Ocwen case and argued in the Burke v Hopkins, 4-18-cv-0543, SDTX.

proving income fraud and forgery – and which Hopkins ‘client’ must have been on notice about), as Hopkins was appointed for the sole purpose of appealing the bench trial ruling, which was in favor of the Burkes. Hopkins fraud on the court19 started after the bench trial in 2015 and continues to this latest filing. There is no ethical limit[s] or boundaries applied in Hopkins system of fraud and malice. Hopkins dishonesty is driven by pure greed.

This system of fraud was repeated in Howard v. PNC: The Burkes sought leave from the lower court for this new evidence to be admitted, e.g. Supplement the Record. It was approved [in the case of Burke v Hopkins].20

Once again, and seemingly with no end in sight, this system of fraud on the court has been implemented in this very response by Hopkins and is a very serious matter for this courts consideration:-

See Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 246- 47, 64    S.CT.    997,    1001-02, 88    L.ED.    1250 (1944) (attorney tampering with administration of justice requires vacation of judgment, whether or not behavior actually influenced outcome of

 

19 This is also often referred to as falsification [of evidence] in courts. “It is well-established   that falsification of [company] documents is a legitimate reason for termination [of Hopkins unlawful appeal in Deutsche v. Burke #15-20201]. See, Kiel v. Select Artificials, Inc., 169 F.3D 1131, 1135 (8th Cir. 1999); Ward v. Procter Gamble Paper Prods. Co., 111 F.3D 558, 560 (8th Cir. 1997); Price v. S-B Power Tool, 75 F.3D 362, 364 (8th Cir. 1996).” – Sornsen v. Wackenhut Corporation, 01-CV-1967 (JMR/FLN), at *1 (D. Minn. Feb. 27, 2003).
20 See initial brief,  Howard v. PNC,  Case: 19-20267        Document: 00515032985       Page: 41 Date Filed: 07/14/2019.

 

trial); id. at 251, 64 S.Ct. 1003 (Roberts, J., dissenting) (“No fraud is more odious than an attempt to subvert the administration of justice.“); Great Coastal Express, Inc. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of America, 675 F.2D 1349, 1357 (4th Cir. 1982) (“Involvement of an attorney, as an officer of the court, in a scheme to suborn perjury would certainly be considered fraud on the court.”), cert. denied, 459 U.S. 1128, 103 S.Ct. 764, 74 L.Ed.2d 978 (1983); H.K. Porter Co. v. Goodyear Tire

Rubber Co., 536 F.2D 1115, 1119 (6th Cir. 1976) (“Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the  court.“); 7 MOORE’S FEDERAL PRACTICE § 60.33, at 359

(2d ed. 1985) (Attorney’s loyalty to client “obviously does not demand that he act dishonestly or fraudulently; on the contrary his loyalty to the court, as an officer thereof, demands integrity and honest dealing with the court. And when he departs from that standard in the conduct  of  a  case  he  perpetrates  a  fraud  upon  the court.“) –Synanon Foundation, Inc. v. Bernstein, 503 A.2d 1254, 1263 (D.C. 1986)

It is now well documented, Hopkins nefarious appeal tactics: In the Deutsche appeal it was to “attack” the integrity of Magistrate Judge Stephen Wm. Smith and with the goal to have him removed from any further involvement in those proceedings and provide a deceptive vehicle for overturning the Burkes judgment in their favor. Hopkins tactics worked.21

 

21 See Motion to Dismiss, ROA.162-163, a quote which Hopkins quotes in both this lower court case and the Burke v. Hopkins case repeatedly. Hopkins takes great satisfaction from gloating on this courts’ documented support of Hopkins, as evidenced with the abhorrent remarks by the 3- panel showing bias and disdain for the Burkes, who are law abiding elderly citizens and homeowners; “In reversing the trial court’s judgment, and thereafter rendering judgment in favor of Deutsche Bank on its judicial foreclosure claim, the Fifth Circuit held, “Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.” Deutsche Bank Nat. Trust Co. v. Burke, 902 F.3d 548, 552 (5th Cir. 2018).”

 

Now Hopkins wishes to mirror this system again: this time against the pro

se Burkes by rambling on and on about the Burkes being such terrible people for having a voice and an opinion, which is allowed under the First Amendment.22

Hopkins, however, declines to introduce the facts of the recent hearing with Judge Magistrate Bray [and the Burkes], in Burke v. Hopkins, wherein Mark Hopkins stated, without evidence, and where he half-recanted later by stating he “misspoke” (translation; ‘perpetrated a[nother] fraud upon the court’);

  1. HOPKINS: “My concern is with the Burkes’ social media postings where they are defaming my firm and my wife and suggesting that some members of the judicial should be shot…and not done with his perjury he came in for a second attack…. “and I would also think the Court would be interested to know that the Burkes are posting that certain judges should be shot.” – See Exhibit #Judges-Shot.

22 However, in Judge Bray’s courtroom, [See Exhibit #Judges-Shot] Mark Hopkins did the unthinkable and had Judge Bray’s demeanor instantly change. Bray became extremely hostile, an animated and yelling Judge, attacking the Burkes from his bench, and siding with pro se perpetrator Hopkins abhorrent allegations as true, and without ANY evidence before him. Joanna Burke immediately denied these atrocious allegations and demanded that Hopkins “show the evidence” as she knew Hopkins statements were evil – and Hopkins could NOT subsequently back up his horrendous lies, designed to have the Burkes charged with a criminal act [and as implied by Judge Bray];

“The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” U.S. Const. amend. I. Nevertheless, the First Amendment does not protect “true threat[s].” Virginia v. Black, 538 U.S. 343, 359 (2003) (“[T]he First Amendment . . . permits [the government] to ban a ‘true threat.'”).” – U.S. v. O’Dwyer, No. 10-30701, at *3 (5th Cir. 2011)

Hopkins once again affirms their own libelous, malicious, evil and slanderous statements – brought in bad faith against the Burkes – and wherein they seek to impugn the Burkes unblemished character before the court[s], which is an act of fraud on the court [as cited above].

Liars like Hopkins, proceeding as pro se [attorneys] were derided in the Warrilow23 Court. Hopkins dishonest conduct is repetitive and premeditated. As such, this court should dismiss Hopkins testimony in its entirety and grant all necessary relief, including a favorable judgment to the Burkes in this appeal.

Additionally, a question this court should consider: Is Hopkins  supposed to be counsel for Ocwen and arguing facts in law and/or presenting their case for Ocwen based on evidence from the lower court proceedings or is Hopkins complaint erroneously and egotistically all about themselves?

The Burkes have24 and still argue Hopkins does not have authority to act for Ocwen25 and this affirms that conviction. Hopkins filing is more about themselves

23 “The Warrilow Case Confirms BDF Hopkins are not just Unethical, they are Corrupt” – See initial brief;                Case: 19-20267     Document: 00515032985    Page: 46    Date Filed: 07/14/2019.
24 For example, see ROA.535 (EXHIBIT #RULE12) and Initial Brief; p. 68, 19-20267 Document: 00515032985 – “Hence in this case, where the Appellants cited TRCP Rule 12 (Show Authority), the federal court can either allow and rule on that motion, or rather than dismiss or deny, refuse jurisdiction and remand to the State Court.”
25 Meanwhile in July 2019, Ocwen was issued ANOTHER cease and desist consent order [showing lack of honesty and continuing to defy all consent agreements, it has to be said, the sheer dismissive

 

and alarmingly [if you’re the client] conflicts with Ocwens’ [and All American* – who went directly to the US Supreme Court – and snubbed this Court] own stance in the Florida litigation with CFPB that “an Act26” [Dodd-Frank27] which is unconstitutional is “not a law” and their case should be dismissed, with prejudice.

*“As this [US Supreme] Court has held, “[a]n unconstitutional act is not a law”; rather, “it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby Cty., 118 U.S. 425, 442 (1886). Where the entity does not “legally exist[ ],” then “no validity

posture and petulance by William Erbey and Owen [Altisource] is extremely noticeable] this time from the STATE OF MAINE; ORDER, in part;

The Bureau finds that OLS had no authority to execute documents as an Attorney in Fact” for legal entities which have had no corporate existence [similar to the case of Deutsche Bank v. Burke case before the 5th Circuit [#15-20201 and 18-20026 but with a completely different result] since March 13, 2012 at the latest and that OLS’s uses of those documents constitute violations of 32 M.R.S. § 11013(2). In servicing Maine mortgages, Ocwen Financial shall immediately cease and desist from recording documents as “Attorney in Fact” for any Aegis entity. Ocwen Financial shall not represent that it possesses a power of attorney from any Aegis entity authorizing it to act on that entity’s behalf, when servicing Maine mortgages; when hiring Maine counsel; or when prosecuting or responding to foreclosure, quiet title, or declaratory judgment actions. In servicing Maine mortgages, Ocwen Financial shall immediately cease and desist from recording documents identifying MERS as the “mortgagee of record” with respect to Aegis-originated loans, unless the filing includes a valid assignment from the mortgage originator or subsequent mortgagee.”

26 “AN ACT To promote the financial stability of the United States by improving accountability and transparency in the financial system, to end ″too big to fail″, to protect the American taxpayer by ending bailouts, to protect consumers from abusive financial services practices, and for other purposes.”

27 For example, see ROA.42-424; “RESPONSE: Defendants removed the case from the Harris County District Courts on federal question jurisdiction based upon Plaintiffs allegations of 15 U.S.C. §1692, the Fair Debt Collection Practices Act (“FDCPA”), 1 the Dodd-Frank Financial Reform Act 12 U.S.C. §1463 (“Dodd-Frank”), 2 and RESPA, 12 U.S.C. §2605. See Complaint[Doc.1-3]. Plaintiffs filed a motion to remand to state court.” can be attached” to its acts. Thus, a lawful entity “[can]not ratify the acts of an unauthorized body.”” – p. 22 All American Check Cashing Inc., et al v CFPB, (“All American”) Petition pending with the US Supreme Court, 30 Sept., 2019 – discussing “Meaningful Relief”.

In any event, this is not the right venue, case, or the right vehicle for Hopkins to cry about personal issues and suggest somehow their personal ‘grievance[s]’ alone can obtain a dismissal of this case. It is farcical and absurd.

CONCLUSION

In submission of this Supplemental Pleading and the two named Exhibits as Supplements to the Record, the Burkes rely upon “the inherent equitable authority of the federal courts of appeals” to either (1) stay the case pending the US Supreme Court opinion in Selia Law OR  (2) Remand with instructions that the lower court remand the Burkes case to the State Court AND for any and all other relief to which they may be entitled.

Respectfully submitted,

DATED: Oct. 27th, 2019

JOANNA BURKE

I declare under penalty of perjury that the foregoing is true and correct and the certificates that follow are also correct.

(28 U.S.C. § 1746 – U.S. Code.)

By      s/ Joanna Burke                                     

JOANNA BURKE

 

JOHN BURKE

I declare under penalty of perjury that the foregoing is true and correct and the certificates that follow are also correct.

(28 U.S.C. § 1746 – U.S. Code.)

By      s/ John Burke                               

JOHN BURKE

 

46 Kingwood Greens Dr., Kingwood, TX, 77339

Telephone: (281) 812-9591

Facsimile: (866) 705-0576

 

Pro Se for Plaintiffs-Appellants

 

CERTIFICATE OF CONFERENCE

 

We hereby certify that on October 27th, 2019, we did not confer with Appellants Mark D. Hopkins and Shelley L. Hopkins of Hopkins Law, PLLC, as this was prepared and filed on Sunday (out of office hours). We assume the joint MOTION is OPPOSED.

 

CERTIFICATE OF SERVICE

We hereby certify that, on October 27th, 2019, a true and correct copy of the foregoing Supplemental Pleading and Supplement to the Record was served via the Court’s EM/ECF system on the following counsel of record for Appellees:

Mark D. Hopkins Shelley L. Hopkins HOPKINS LAW, PLLC

3809 Juniper Trace, Suite 101

Austin, Texas 78738

Telephone: (512) 600-4320

Facsimile: (512) 600-4326

 

        s/ Joanna Burke                        

JOANNA BURKE

 

        s/ John Burke                            

JOHN BURKE

 

 

CERTIFICATE OF COMPLIANCE

The undersigned counsel certify that this Supplement complies with the type-volume limitation of Fed. R. App. P. 27(d)(2)(A) because this Supplement contains 4,545 words according to Microsoft Word’s word count, excluding the parts of the motion exempted by Fed. R. App. P. 32(f).

 

        s/ Joanna Burke                        

JOANNA BURKE

 

        s/ John Burke                            

JOHN BURKE

Deputy Clerk; Dawn M. Shulin – Denied within hours of filing.

Appellants’ opposed motion to supplement the record on appeal with a pleading and exhibits has been DENIED.

MEANWHILE ON November 12, 2019, a very interesting Order from the 5th Circuit, on Remand from the US Supreme Court and with Higginbotham and Haynes both on the 3-panel…

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 16-10330

UNITED STATES OF AMERICA,

Plaintiff – Appellee

v.

MAURICE LAMONT DAVIS; ANDRE LEVON GLOVER,

Defendants – Appellants

Appeals from the United States District Court for the Northern District of Texas

USDC No. 3:15-CR-94-2 USDC No. 3:15-CR-94-1

ON REMAND FROM THE UNITED STATES SUPREME COURT

Before HIGGINBOTHAM, JONES, and HAYNES, Circuit Judges. PER CURIAM:*

Appellants Andre Levon Glover and Maurice Lamont Davis were convicted for a series of robberies committed in June 2014 at Murphy Oil locations in the Dallas area. Both Appellants were convicted under the Hobbs Act, 18 U.S.C. § 1951(a), for conspiracy to interfere with and aiding and abetting interference with commerce by robbery.1

They were also convicted on firearms charges under 18 U.S.C. § 924(c).2

Davis alone was convicted for being a felon in possession of a firearm in violation of 18 U.S.C. § 924(a)(2).

In their original appeals, we affirmed the district court’s judgment in full. United States v. Davis, 677 F. App’x 933, 935–36 (5th Cir. 2017) (per curiam).

The Appellants petitioned the Supreme Court for certiorari. Following its decision in Sessions v. Dimaya, 138 S. Ct. 1204 (2018), the Court remanded this case to our court “for further consideration in light of” Dimaya. Davis v. United States, 138 S. Ct. 1979, 1979–80 (2018) (mem.).

On remand, we affirmed the Appellants’ convictions and sentences on all counts save Count Two. United States v. Davis, 903 F.3d 483, 486 (5th Cir. 2018).

Finding the residual clause of 18 U.S.C. § 924(c) unconstitutionally vague in light of Dimaya, we vacated the Appellants’ convictions and sentences on Count Two and remanded for entry of a revised judgment. Id.

While the Appellants’ petitions for rehearing were pending, the United States petitioned for certiorari on the issue of the residual clause in this context, which the Supreme Court granted.

We stayed proceedings on the petitions for rehearing pending the Court’s decision.

The Court agreed that § 924(c)’s residual clause was unconstitutionally vague, so it affirmed our decision on the Count Two convictions. Because we had stayed the petition for rehearing pending the Court’s decision, it vacated in part and remanded the case to our court to address in the first instance the petition for rehearing which included the issue of whether we should order a resentencing. United States v. Davis, 139 S. Ct. 2319, 2336 (2019).

To summarize, we continue to affirm all convictions save Count Two which we vacate.

We therefore remand for entry of a revised judgment of conviction consistent with this opinion.

We deny the petition for rehearing as to the convictions.

Turning to the question of resentencing, we grant the petition for rehearing in part and vacate the Appellants’ sentences in full, remanding their sentences to the district court for resentencing in full.3

See Pepper v. United States, 562 U.S. 476, 507 (2011) (“Because a district court’s original sentencing intent may be undermined by altering one portion of the calculus, an appellate court when reversing one part of a defendant’s sentence may vacate the entire sentence . . . .” (citation and internal quotation marks omitted)). We do not opine on how the district court should resentence the Appellants.

The judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for entry of a revised judgment and for resentencing.


* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 Glover was convicted under the Hobbs Act on Counts One, Three, Four, Five, and Six; Davis was convicted on Counts One, Five, and Six.

2 These were Counts Two and Seven, which charged the Appellants with using, carrying, and brandishing firearms during and in relation to, and possessing and brandishing firearms in furtherance of, a crime of violence. Glover’s conviction on Count Seven also included aiding and abetting the brandishing of firearms. Our original ruling that the conviction on Count Seven remains valid following Dimaya because it involved a crime of violence under the elements clause which was not altered. See 903 F.3d at 484-85

APPELLANTS MOTION FOR RECONSIDERATION RE CONSTITUTIONAL CHALLENGES

Nov. 10, 2019 (filed with 5th Circuit)

Appellants, Joanna Burke and John Burke (“Burkes”), now file a Motion  for reconsideration [FED. R. APP. P. 27.2] of single Circuit Judge Patrick Higginbothams’ Order dated Monday, 28th October, 2019.  In support thereof:  The Order signed by Judge Higginbotham; “IT IS ORDERED that appellants’ opposed motion to stay case in Fifth Circuit awaiting a final rule or adjudication on the constitutional challenges is DENIED.”

Imaginative and Innovative Steps: Questionably, this Court previously advised the Eleventh Circuit; “The Fifth Circuit has urged district courts to take “imaginative and innovative” steps in dealing with  § 1983 [constitutional] cases.” – Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

Nomination to become a Fifth Circuit Judge:  Judge Higginbotham’s nomination, due to the era in which he was appointed, is much less detailed than the questions presented in modern times by Senators when ‘interviewing by email’ the candidates for the position(s) on the Federal Courts.

For example, the nomination of Judge James ‘Jim’ Ho is preceded by Questions for the Record (“QFR”) wherein there is a templated set of questions which inevitably but most importantly, address the very same subject matter discussed herein, namely the Constitution.

The word “Constitution” is mentioned 51 times in the QFR, highlighting the importance of the Constitution when appointing a judge to the Court of Appeals for the Fifth Circuit. (and in the same confirmation hearing, on Nov. 15, 2017, the QFR for Judge Don Willett, the word “Constitution” was raised 76 times).

A theme of the answers to the questions in Judge Ho and indeed all of the fellow judges appointed which the Burkes’ have perused, provide the same answer(s), e.g.

“With respect to constitutional interpretation, lower court judges must follow U.S. Supreme Court precedent.” And “Lower courts do not have the authority to depart from Supreme Court precedent.”

Turning to this Courts recent ruling regarding the FHFA being “unconstitutional’[1], this confirms Judge Higginbothams’ Order not only contradicts the precedent of the Supreme Court but this Courts’ own ‘binding precedent’.[2]

In other words, the Burkes’ motion should have been granted for due process and justice to be served when there is a matter of life, property and liberty at stake and the entire Circuit and Supreme Court are considering the Constitutional and indeed legislative matters the Burkes have raised in their motion(s).

Judge Recusal: The Order was signed by single Judge Patrick Higginbotham, who should have automatically recused himself from this case. The Burkes’ mentioned the newly appointed judges in part, to refer to the following;

In relation to Judge Higginbotham’s nomination, he received a reference from Senator Lloyd Bentsen which is not supported by the remarks made by Judge Higginbotham in Reinagel [discussed below].

His bias and discriminatory words as recorded in oral argument could not possibly be interpreted or be perceived to “be a model for other judges”.

Confirmation of Federal Judges, 97th Congress, Second Session, Serial No. J-97-52, Part 4

Judge Patrick Higginbotham:

“An impartial judiciary, while a protean term, translates here as the state’s interest in achieving a courtroom that at least on entry of its robed judge becomes a neutral and disinterested temple, in appearance and fact – an institution of integrity, the essential and cementing force of the rule of law.   That this interest is compelling cannot be gainsaid.”

  • Before HIGGINBOTHAM, WIENER and CLEMENT, Circuit Judges. PATRICK E. HIGGINBOTHAM, Circuit Judge for the panel in Jenevein v. Willing, 493 F.3d 551 (5th Cir., 2007)

First, the Burkes address the fact biased Judge Higginbotham signed the Order. While this court may claim random assignment, there is a duty of judges to recuse themselves, even without an inkling of bias in the eyes of the judge and as SCOTUS has recently reaffirmed in Rippo[3];  It certainly cannot be claimed by Judge Higginbotham that he falls outside this ‘bias’ standard.

“Ain’t no free lunch and there sure ain’t no free house” (laughing)… (Oral Audio recording: quote begins at 36.25 mins +)[4]

In reaching this conclusion, the Burkes first remind this court of their  personal interest in; (i) Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sep. 5, 2018) and Deutsche Bank Nat’l Tr. Co. v. Burke, No. 15-20201 (5th Cir. 2016) and; (ii) Reinagel v. Deutsche Bank Nat’l Trust Co., 735 F.3d 220 (5th Cir. 2013), the En Banc Order authored by Judge Higginbotham; and (iii) the

Burkes’ judicial council complaints about the 3-panel in Deutsche Bank Nat’l Tr. Co. v. Burke, 902 F.3d 548 (5th Cir. Sep. 5, 2018)  and the subsequent Order of denial of reconsideration by the Appellate Review panel, as signed on March 29, 2019 by newly appointed Chief Judge R. Priscilla Owen[5]. In this order the Burkes’ stated;

“For example, Judge Higginbothams’ oral statements [‘no free house(s)’] in Reinagel v Deutsche Bank, which Graves sat on and agreed with the Opinion, rendering foreclosure in favor of the Bank.”

“Absence of Finality” Bias: Secondly, the Burkes raise another alarming statement from Judge Higginbothams’ confirmation;

Confirmation of Federal Judges, 97th Congress, Second Session, Serial No. J-97-52, Part 4

Panel Discrimination: The Burkes reference the parting sentence in this Courts Opinion in Deutsche Bank v. Burke, Sept. 5, 2018, #18-20026, wherein Judge Catharina Haynes for the panel stated;

“Given nearly a decade of free living by the Burkes, there is no injustice in allowing that foreclosure to proceed.”

Judge Higginbotham’s discrimination in his statements regarding ‘absence of finality’ raises further question as to the ability of Judge Higginbotham to follow the Judicial Oath and the Constitution.

Conclusion: The Burkes requests this Court grants the Burkes motion regarding the Constitutional Questions/Challenges. The Burkes would  remind this court is inferior to the US Supreme Court[6] and they should not be defied.[7]

Ocwen’s abuses and $3 BILLION dollars in fines have been well documented since the Great Recession, the people and the press will no doubt be highly concerned that their citizens are not being afforded access to courts, justice, liberty and due process per the Constitution of the United States – should this Court refuse the Burkes “Constitutional Challenges” motion upon reconsideration of a single judge’s Order.

Respectfully submitted,

DATED: Nov. 10th, 2019            


[1] Collins v. Mnuchin, No. 17-20364 (5th Cir. Sep. 6, 2019)

[2] See SEC v. Team Resources Incorporated, et al (5th Nov. 2019) “Nonetheless, “we have traditionally held that even when the Supreme Court has granted certiorari in a relevant case, we will continue to follow binding precedent.” United States v. Islas-Saucedo, 903 F.3d 512, 521 (5th Cir. 2018) (citing Wicker v. McCotter, 798 F.2d 155, 158 (5th Cir. 1986)). Collins v. Mnuchin is “binding precedent” as a published opinion.

[3] Rippo v. Baker, 137 S. Ct. 905 (2017).

[4] See Reinagel v. Deutsche Bank Nat’l Trust Co., 12-50569 and listen to the Oral Argument Audio found at the Library HERE.

[5] See Burkes judicial complaint “Or the Priscilla Owen question in Diaz v Deutsche Bank, where she stated she’d seen at least 50 complaints by homeowners who had mortgage payments returned without explanation, yet Deutsche Bank prevailed in this case she reviewed.”

[6] Article III, Section 1, of the Constitution.

[7] “A contrary rule would permit judges to “substitute their own pleasure” for the law.” –Gamble v. United States, 139 S. Ct. 1960 (2019).

1 Comment

1 Comment

  1. Pingback: The Fifth Circuit is Assessing "Separation of Powers", Yet as the Case Herein Shows, it is Guilty Itself of being Unconstitutional | Laws In Texas

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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