Baker Donelson

Foreclosure Crisis Redux: 85-Year Old Widow Fights Against Criminal Theft of Property in Landmark Case

Legal Vigilance at 85: Widow’s Stand Against Unlawful Property Seizure as Her Brave Crusade Shines Light on Wall St. Property Theft Tactics.

OUTLAW JUDGE TAMI CRAFT SELF-RECUSES AFTER VIOLATING EVERY TEXAS LAW, RULE AND CIVIL PROCEDURE

JAN 25, 2023

On Dec. 11, 2023, LIT’s founder, Mark Burke, filed a motion to disqualify Judge Tamika Craft-Demming, aka Tami Craft.

She had 3 days to decide – mandatory rule. Craft failed to do anything, rather blanking the motion. Thereafter, she went on a tirade of retaliatory acts.

First, the court refused to accept the filing, claiming the exhibits had to be renamed. Mark refused, citing to prior examples of naming convention for exhibits accepted by the court. The court would then rename all exhibits as “Exhibit”.

Then on Dec. 27, 2023 she’d be the assigned ancillary judge for party Joanna Burke in her request for a TRO in case; 202386973 – BURKE, JOANNA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY (Court 011). At the oral hearing she DENIED the TRO without reason, despite the overwhelming evidence supporting the TRO. See signed ORDER denying TRO, dated Dec. 27, 2023.

Next, on submission dayJan. 8, 2024, Mark intervened in the matter;  202366239 – IDEA 247 INC vs. EPPS, RAYMOND (A/K/A RAY EPPS) (Court 189) and the court would GRANT Idea’s motion to STRIKE the INTERVENTION, despite the objections and request for hearings which were also blanked by the court. The order was signed at 3.35 pm.

Also, at 1.16 pm earlier that day, the court – in the case 202311266 – KRUCKEMEYER, ROBERT J vs. BLOGGER INC D/B/A LAWIN TEXAS.COM (Court 189) – would email Mark falsely claiming “The courts do not have a record of a Proposed Order for the following setting. Please file one or contact the court if there is one on file.”. This was a ruse and Mark wittingly chose to ignore the premeditated invite to respond.

As detailed below, today, Jan. 23, 2023, the court and Outlaw Craft would contradict their own rule by holding the hearing (no proposed order, no hearing) and 3 minutes later stating it was PASSED. Shortly thereafter, it is clear from the online docket, Craft would then enter her self recusal – once her trail of destruction was complete.

Let it be known, this is only the beginning, Outlaw Craft, not the end of your ongoing relationship with Mark Burke and LIT.

See; Barnhill v. Agnew, No. 12-12-00080-CV, at *2 (Tex. App. Oct. 16, 2013)

(“When a party files a motion to recuse a trial judge, the responding judge, regardless of whether the motion complies with the requisites of Texas Rule of Civil Procedure 18a, must, within three business days after the motion is filed (1) sign and file with the clerk an order of recusal or (2) sign and file with the clerk an order referring the motion to the regional presiding judge.

See TEX. R. CIV. P. 18a(f)(1).

Failure to comply with the rule renders void any actions taken subsequent to the violation. 

In re A.R.,236 S.W.3d 460, 477 (Tex. App.-Dallas 2007, no pet.).”)

Notably, no email from the Court advising of this sua sponte recusal

Absent from the Docket as at Jan. 23 - An Order re Self-Recusal by Outlaw Tami Craft

VERIFIED PETITION AND APPLICATION FOR EX-PARTE TEMPORARY RESTRAINING ORDER AND  PERMANENT INJUNCTION BY JOANNA BURKE

DEC 21, 2023 | REPUBLISHED BY LIT: DEC 21, 2023

Plaintiff  Joanna Burke, individually, files this petition and application for injunctive relief against Defendants.

Parties

Plaintiff, Joanna Burke (“Joanna”), is an individual resident of Kingwood,  Harris County, Texas.

Defendant, DEUTSCHE BANK NATIONAL TRUST COMPANY, (“DBNTCO”) is a non-resident company headquartered in California and doing business in the State of Texas. DBNTCO may be served c/o  Texas Secretary of State, PO Box 12079, Austin, Texas, 78711-2079, to be served on DBNTCO’s known place of business, pursuant to Sec. 17.091, Tex. Civ. Prac. And Rem. Code.

Defendant, PHH MORTGAGE CORPORATION, (“PHH”) is a non-resident company headquartered in New Jersey and doing business in the State of Texas. PHH may be served c/o Corporation Service Company dba CSC – Lawyers Incorporating Service Company, 211 E. 7th Street, Suite 620, Austin, Texas, 78701 or wherever else such registered agent may be found.

Defendant, AVT Title Services, LLC, (“AVT”) is a limited liability company doing business in the State of Texas. AVT may be served through its registered agent at 14160 N. Dallas Parkway, Suite 900, Dallas, Texas, 75254.

Defendant, Mackie Wolf Zientz & Mann, PC, (“Mackie Wolf”) is a Professional Corporation doing business as a law firm in the State of Texas. Mackie Wolf may be served through its registered agent at 14160 N. Dallas Parkway, Suite 900, Dallas, Texas, 75254.

Jurisdiction & Venue

The Court has jurisdiction over the parties because the actions complained of herein all occurred in Harris County, Texas. Also, the real property which is the subject of this lawsuit is located in Harris County, Texas. Venue is also proper in Harris County, Texas.

Rule 47 Statement

For the statements and arguments provided herein and in compliance with Tex. R. Civ. P. 47., Plaintiff, Joanna Burke, seeks affirmative relief in the form of a declaratory judgment, and injunctive relief to prevent the scheduled sale while related litigation is ongoing, as well as limited monetary damages less than $75,000, including statutory damages and court costs, as determined and allowed by this court.

Discovery Control Plan

Plaintiff respectfully requests this case be governed by Level 2, Texas Rules of Civil Procedure.

Facts

This petition is firmly grounded in Texas laws, with affirmative relief sought and no federal question(s) present. The defendants include Texas domiciled persons. Furthermore, the Plaintiff seeks a monetary award of less than $75,000. Hence, any attempts at removal would not dispose of the Plaintiff’s claims and application for injunctive relief.

Summary of the Complaint

1.    There is active litigation in federal court which prevents a nonjudicial foreclosure proceeding.

2.    Relevant here, the ongoing litigation includes a claim that the judgment issued by federal US District Judge Alfred Homer Bennett of S. D. Texas is void, a nullity.

3.    PHH Mortgage Corporation offered plaintiff a confidential settlement during the current federal proceedings. As such, it is clear and obvious;

a.    Defendants are fully aware of the ongoing litigation;

b.    The likelihood plaintiff will prevail on the merits, and;

c.     Warrants obtaining a TRO to prevent any nonjudicial foreclosure of the plaintiff’s homestead.

4.    Beyond the points mentioned earlier, and with a specific focus on the impending harassing and unlawful nonjudicial foreclosure scheduled for January 2, 2024, the defendants face several insurmountable issues. These issues warrant the issuance of a Temporary Restraining Order (TRO) to prevent this illegal act without delay;

a.    Plaintiff verifies she received no notice of default;

b.    Plaintiff verifies she received no notice of acceleration;

c.     Plaintiff has a right to cure, absent as a result of the failure to provide adequate notices;

d.    Plaintiff verifies the notice of foreclosure sale is deficient;

i.      The indebtedness in the notice is correctly set at zero dollars, so there is no reason to auction a home where no debt exists;

ii.      The correct mortgagee identified in the notice is disputed. Plaintiff contests DBNTCO as the current mortgagee. She avers PHH Mortgage Corporation, and/or another person currently owns the alleged debt.

iii.      The notice refers to the order of  judicial foreclosure, but upon inspection of the order it is deficient, and void, for example;

1.    No legal description of the property;

2.    No value of any alleged indebtedness;

iv.      In the alternative, there is no Writ of Execution.

v.      The substitute trustee is not a nominal party and defendant in this action.

5.    Plaintiff is seeking monetary damages  for TDCA and TFC violations.

6.    Plaintiff is seeking affirmative relief.

7.    Plaintiff is seeking a declaratory judgment.

8.    Plaintiff is seeking injunctive relief.

The Notice of Foreclosure Sale

On November 25, 2023, Plaintiff discovered a troubling issue with AVT’s notice of foreclosure sale, scheduled for January 2, 2023.

Defendant PHH Mortgage Corporation, a subsidiary of Ocwen Financial, has a history marred by more than $2.6 billion in fines since the 2008 financial crisis.

They assert themselves as the mortgage servicer for Plaintiff’s alleged HELOC loan on her homestead.

Adding to the complexity, defendant DBNTCO, claiming to be the mortgagee, has faced fines exceeding $20 billion since 2000.

Notably, a $7.2 billion settlement with the Department of Justice stemmed from the bank’s irresponsible lending practices and mortgage-related irregularities.

These actions contributed to a significant loss of citizens’ residential homes, a historical injustice.

The bank later reneged upon the settlement.

Defendant AVT, functioning as the appointed substitute trustee, shares its registered office address with Mackie Wolf, the law firm involved in this matter.

Defendant Mackie Wolf, known for its role as a foreclosure mill and creditor rights law firm, frequently changes its position based on the allocation of foreclosure cases.

This includes representing banks, trustees, mortgage servicers, and even acting as the substitute trustee.

Notably, their staff and lawyers also engage in non-lawyer activities and moonlight for title companies.

The presence of such a glaring conflict of interest by foreclosure mills like Mackie Wolf has been widely recognized since the financial crisis.

Despite the well-known principle that law firms should not assume multiple roles to avoid conflicts, they continue to operate with apparent impunity, remaining shielded from accountability.

An Active Dispute and Litigation Prevents Foreclosure

Joanna Burke is litigating a separate, distinct, and active civil suit against PHH Mortgage Corporation in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, currently under appeal to the 8th Circuit.

See; Deutsche Bank Nat’l Tr. Co. v. Cornish, No. 18-2429 (7th Cir. Feb. 6, 2019)

(Holding the “security interest in the underlying property” is ordinarily sufficient security “in appeals from mortgage foreclosure judgments”).

Despite this effectively tolling any foreclosure notice or sale, the defendants listed here have collectively defied the rule of law.

Brazenly, they have scheduled Plaintiff’s home for auction on January 2, 2024, disregarding the ongoing legal proceedings.

The Scheduled Sale Violates the Law

As recently as this month, a Texas Supreme Court case confirmed this in Sanders v. The Boeing Co., No. 23-0388, at *18 (Tex. Dec. 1, 2023)

(“when a party appeals a dismissal order, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends. We agree.”).

Unlawful Sale Proceedings Despite Notice and Acknowledgement

Tex. Fin. Code § 392.301(3) states; “representing or threatening to represent to any person other than the consumer that a consumer is wilfully refusing to pay a nondisputed consumer debt when the debt is in dispute and the consumer has notified in writing the debt collector of the dispute”.

PHH has willfully and maliciously instructed substitute trustee AVT Title Services, LLC, and counsel Mackie Wolf to conduct the sale, a person other than the consumer, claiming erroneously that Plaintiff is willfully refusing to pay.

Furthermore, Plaintiff is receiving letters, emails and text messages stating her home is slated for auction at a foreclosure sale in January by cold-calling marketers, real estate investors and bankruptcy lawyers, to name a few

(Exhibit DB5).

On December 3, 2023 Plaintiff sent a letter to AVT’s counsel advising them they were unlawfully scheduling the sale and requested a timely cancellation of the foreclosure sale.

Plaintiff provided this letter with a notice of lis pendens via email on December 4, 2023 to counsel for AVT.

(Exhibit DB4).

Attorney Mark Cronenwett responded for Mackie Wolf late in the evening of the same day, stating that the sale will proceed, despite being notified of the ongoing dispute and litigation in federal court as discussed above, in violation of consumer laws.

(Exhibit DB6).

Deficiencies in the Foreclosure Proceedings

The Notice of Foreclosure Sale, a critical document in the scheduled January 2, 2024 auction, stands on shaky ground, rendering the entire sale void and defective.

No Default and Acceleration Notices: Failure to provide notices of default or acceleration prior to the Notice of Foreclosure Sale.

Notice of Default: The notice of default is typically the initial notice sent to the borrower when they are in default on their mortgage payments.

It informs the borrower that they have failed to make the required mortgage payments, and it usually provides a specific period within which the borrower must cure the default by bringing the payments current.

The notice of default is a prerequisite to the foreclosure process and is meant to give the borrower an opportunity to address the default before further legal action is taken.

Notice of Acceleration:

The notice of acceleration is a separate notice that may follow the notice of default.

If the borrower does not cure the default within the specified timeframe, the lender may issue a notice of acceleration.

This notice informs the borrower that the entire outstanding loan amount is now due, not just the overdue payments. In other words, the lender is accelerating the maturity of the loan, making the entire loan balance payable immediately.

Legal Authority:

Mathis v. DCR Mortgage III Sub I, L.L.C., 389 S.W.3d 494, 508 (Tex. App. 2012)

(“Since DCR did not give proper notice of its intent to accelerate the debt, we hold that any attempted acceleration was ineffective. See Ogden, 640 S.W.2d at 234. ”).

Summary:

The Plaintiff has not received these notices and there is no proof  in the form of attachments to the Notice of Foreclosure Sale which provide copies of either notice.

There are known defects surrounding the Notice of Foreclosure Sale.

(Exhibit DB1).

The admitted zero dollars indebtedness raises questions about the legitimacy of the scheduled sale which is not signed or dated.

Inconsistencies in the identification of mortgagee entities and a deficient order by Judge David Hittner further muddy the waters

(Exhibit DB2).

Zero Dollars Indebtedness:

At the core of the defects lies the admission by defendants themselves.

Point no. 5 of the Notice explicitly states the indebtedness as $0 (zero dollars), revealing that Plaintiff owes nothing to the defendants. Joanna agrees.

Legal Authority:

This critical revelation aligns with legal precedent, as highlighted in Harwath v. Hudson, 654 S.W.2d 851, 852 (Tex. App. 1983), which emphasizes the importance of compliance with notice provisions.

A foreclosure sale lacking validity due to non-compliance becomes evident, especially when the claimed debt is nonexistent.

PHH’s Confidential Settlement Offer:

Furthermore, the inconsistencies multiply. Despite asserting Deutsche Bank National Trust Company (DBNTCO) as the “real party in interest” and current mortgagee, recent correspondence from PHH Mortgage Corporation and counsel Shelley Hopkins presented a confidential settlement offer

(Exhibit DB3).

This offer stands in stark contrast to the foreclosure proceedings, raising questions about the true entities involved and the validity of the claims against Plaintiff.

Judge David Hittner’s Deficient Order:

The deficiencies continue with point no. 6 – Order to Foreclosure, referencing the order by United States District Court Judge David Hittner.

Deutsche Bank’s counsel, whilst at the Fifth Circuit, attempted to inject new arguments about indebtedness and proposed orders.

The Burke’s objection was grounded in the fact that these arguments were introduced for the first time on appeal, and Hopkins was requesting the appellate court to perform a judicial act beyond its authority and jurisdiction.

Judge Hittner’s order, while addressing the remanded issues, falls short of meeting Texas law standards required for inducing a sale of Plaintiff’s homestead.

The deficiency extends to crucial details such as the value of alleged indebtedness and the legal description of the property subject to foreclosure.

Legal Authority:

Drawing parallels with Gutierrez v. City of Laredo, No. 07-14-00270-CV, at *7 (Tex. App. Aug. 3, 2015), it becomes evident that a deficient property description renders the judgment void.

No Writ of Execution:  Nor is there a writ allowing foreclosure.

Legal Authority: Andrews v. Roadway, 473 F.3d 565 (5th Cir. 2006)

(Noting that no authority existed to supplant the state law process for the enforcement of a writ of execution).

Summary: As the layers of deficiency unravel, the foreclosure proceedings appear as a house of cards, built on shaky ground.

The critical examination of both the Notice and Judge Hittner’s order reveals not only legal inadequacies but raises serious doubts about the entire process’s legitimacy.

In the face of these revelations, Joanna’s fight for her homestead gains a new dimension—one that questions the very foundations of the foreclosure proceedings and demands a closer scrutiny of the entities involved.

The Substitute Trustee, Defendant AVT is not a Nominal Party

Legal Authority:

As far back as 1885, Texas courts have opined “The trustee was not a merely nominal party. The object of the suit was to prevent him from selling the property under the power given by the deed of trust.”

In Thayer v. Life Association, 112 U.S. 717, 719 (1885).[1]

As discussed above and in Harwath v. Hudson, Texas case law provides many strict compliance authorities, such as the “court further noted that [strict] compliance with the notice condition contained in the deed of trust and as prescribed by law is a prerequisite to the right of the trustee to make the sale”.

Summary:

Here, the substitute trustee did not strictly comply as the indebtedness marked on the notice of foreclosure sale is zero dollars, as well as the other arguments presented herein.

The Malicious Targeting of Joanna and Her Homestead

At the forefront of this legal labyrinth is creditor rights law firm Mackie Wolf, defender of creditor rights.

Their extensive history and experience in real estate law is prominently displayed in cases before state and federal courts underscore Mackie Wolf’s significance.

However, a paradox emerges as fallacious claims and erroneous acts persist, seemingly driven by undisclosed incentives.

The intricate dance between these foreclosure mills, substitute trustees, mortgage servicers, and bank trustees, despite conflicts of interest and aged Texas laws, raises questions of organized collusion.

The narrative takes a dark turn as Joanna’s 85-year-old vulnerability is exploited, marked by attempts to seize her retirement home.

Mackie Wolf stand accused, put on notice for elder abuse, a felony under Texas law.

Joanna’s poignant letter (Exhibit DB4) serves as a legal battleground, exposing the criminal intent behind the attempt to wrest her homestead away.

The footnote becomes a testament to the gravity of the situation, citing elder abuse as both a criminal act and a felony.

Amidst ongoing legal battles, the defendants frustration reaches a tipping point, leading to scandalous and unlawful acts, which were reaffirmed by the fraudulent removal of Joanna’s recent intervention as described in her last filing docketed Dec. 19, 2023;

“Verified Emergency Motion to Retain Jurisdiction with Exhibits by Intervenor-Plaintiff Joanne [sic] Burke”, 202359141 – SAMUELS, JEFF vs. AVT TITLE SERVICES (Court 234).

In their desperate pursuit, the risk to Joanna is not only the impending theft, but the past, present and future infliction of irreparable harm and emotional distress resulting from the ongoing traumatic defense of the foreclosure sale.[2]

The narrative suggests a sinister motive—silencing Plaintiff permanently through the weight of emotional and physical stresses.

As justice unravels, the struggle for Joanna’s home becomes a broader tale of legal complexity, abuse, and the resilience of one woman against an unjust system.

Causes of Action

Declaratory Judgment

Purpose:

The purpose of a declaratory judgment is to clarify legal rights and relationships before any actual harm occurs.

It allows parties to seek a binding determination from the court on the interpretation of a contract, statute, or other legal document.

Statutory Basis:

Texas law provides for declaratory judgments under the Texas Declaratory Judgments Act. Tex. Civ. Prac. & Rem. Code § 37.002.

This statute allows a party to seek a declaration of their rights and legal relations.

It is to be liberally construed and administered.

Requirements:

To seek a declaratory judgment in Texas, Plaintiff must demonstrate that there is an actual controversy or uncertainty that needs resolution.

As discussed, Plaintiff meets this requirement.

Discretion of the Court:

The court may consider factors such as whether the judgment would effectively and conclusively settle the legal issues at hand.

Here, the judgment would settle the issue, the unlawful foreclosure sale.

Legal Authority:

The Declaratory Judgment Act provides that “[a] person interested under a deed… may have determined any question of construction or validity arising under the instrument.”

TEX. CIV. PRAC. & REM. CODE ANN. § 37.004(a).

Scope of Relief:

Plaintiff seeks a declaratory judgment which states;

(i) when a party appeals a dismissal order as Joanna Burke has timely initiated in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends,

and

(ii) that Joanna Burke’s current and active appeal at the Court of Appeals for the Eighth Circuit, case no. 23-3593,  prevents defendants from conducting the scheduled foreclosure sale of her home at 46 Kingwood Greens Drive, Kingwood, Texas, 77339 on January 2, 2023,

and

(iii) a Temporary Restraining Order (“TRO”) and/or Permanent Injunction is granted to prevent defendants from proceeding with the scheduled sale on January 2, 2023, which shall remain in effect until such times as the current litigation in the District of Minnesota and at the Court of Appeals for the Eighth Circuit is at a formal end.

TDCA  and Texas Finance Code

Damages:

As per the TDCA (Tex. Fin. Code § 392.403(a)(2)), “A person may sue for: actual damages sustained as a result of a violation of this chapter,” as cited from McCaig v. Wells Fargo Bank (Texas), N.A., 788 F.3d 463 (5th Cir. 2015).

Plaintiff can establish damages, including mental anguish resulting from this latest legal conspiracy and targeted harassment, leading to the unwarranted threat of foreclosure and planned eviction.

Plaintiff seeks an award of less than $75,000 in damages, including any statutory damages, and reimbursable costs as allowed in law.

Violation:

As highlighted in McCaig, mortgage servicer PHH Mortgage Corporation violates the Texas Finance Code by asserting legal rights it does not possess, concluding that because Wells Fargo (the loan servicer) did not have a right to foreclose, then its threat of initiating foreclosure proceedings was actionable under the TDCA.

Legal Authority:

Plaintiff has met the necessary burden of proof, see; Williams v. Lakeview Load (sic) Servicing, LLC, Civil Action 4:20-CV-1900, at *49 (S.D. Tex. Aug. 14, 2023)

(“Proof of an actual injury is a liability element of Plaintiffs’ TDCA claims).

Injunctive Relief

Application for Ex-Parte Temporary Restraining Order and Temporary Injunction

For the reasons provided, Plaintiff, Joanna Burke is seeking an ex-parte temporary restraining order in the sum of $100 (one hundred US Dollars) and a temporary injunction preventing the defendants from foreclosing on the property and evicting plaintiff from the property which is the subject of this lawsuit.

Legal Authority:

Considering the unconscionable and illegal acts by defendants in this matter, the request to set the bond at $100 (one hundred US Dollars) is more than reasonable, and in light of other bond amounts set at $100 in this district court.

By way of example; in Jeff Samuels litigation history in this court, he has sued his lender/mortgage servicing company and/or substitute trustee on at least four occasions, in 2012[3], 2013[4], 2014[5], and 2023[6].

In the most recent case, bond was set at $100

(Exhibit DB7).

Additionally, a review of his other cases strongly indicates bond was waived,  and the court personally assisted Jeff Samuels in his lawsuit by advising him to extend the date for a temporary injunction hearing by obtaining an order extending his no-bond TRO

(Exhibit DB8).

Summary:

It is In the event this Court does not grant Joanna Burke’s Application for Ex-Parte Temporary Restraining Order, she will suffer irreparable harm because the real estate which is the subject of this lawsuit is unique in character and cannot be replaced with money damages only.

Plaintiff has no other adequate remedy at law.

The Ex-Parte TRO Hearing

Plaintiff, Joanna Burke respectfully requests the court provides the date and time for a hearing.

The Plaintiff is hard of hearing and would respectfully request the court invoke constitutional due process by allowing the emergency hearing to be remote, as zoom allows for real-time closed captioning which complies with ADA guidelines.

Verification, Prayer & Relief

In closing, I, Joanna Burke, as Plaintiff with due authority and competency, resident of Kingwood in the livable forest of Harris County, Texas, born on November 25, 1938 (85 years old), in Lenzie, Scotland, United Kingdom, and currently holding U.S. Citizenship, a valid State of Texas Driver License (last 3 digits are 738), and a Social Security Card (last 3 digits are 874), do solemnly declare under penalty of perjury that the foregoing statements are true and correct.

This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).

Accordingly, plaintiff Joanna Burke respectfully requests that she receives declaratory judgment in her favor, a temporary injunction and other relief requested above, that she recovers recover costs as allowed by this court and in law, and that Joanna Burke have and recover all other and further relief to which she may be entitled to prevent defendants from unlawfully selling her homestead, in violation of Texas laws.

RESPECTFULLY submitted this 21st day of December, 2023.

[1] See, for example, 202355138 – AVT TITLE SERVICES LLC THE APPOINTED SUBSTITUTE TR vs. GODFREY, BRITA (Court 157), petitioning for expedited foreclosure on August 21, 2023  and receiving an order of judgment of foreclosure on October 31, 2023 with Mackie Wolf as counsel for AVT.

[2] See; EMC Mortgage Corp. v. Jones, 252 S.W.3d 857, 876 (Tex. App. 2008)

(“Taken as a whole, the evidence is sufficient for a jury to reasonably form a firm belief or conviction that EMC acted with specific intent to cause the Joneses substantial harm. Because we conclude the evidence was sufficient to support a finding of malice, we need not consider whether the collection efforts also resulted from gross negligence.”).

[3] 201271195 – SAMUELS, JEFF vs. OCWEN LOAN SERVICING LLC (Court 269).

[4] 201326721 – SAMUELS, JEFF vs. OCWEN MORTGAGE SERVICES LLC (Court 269).

[5] 201470060 – SAMUELS, JEFF vs. OCWEN LOAN SERVICING LLC (Court 055).

[6] 202359141 – SAMUELS, JEFF vs. AVT TITLE SERVICES (Court 234).

Burke v. Deutsche Bank, et al

DEC 21, 2023 | REPUBLISHED BY LIT: DEC 21, 2023
DEC 21, 2023
FEB 21, 2024

Above is the date LIT Last updated this article.

TRO ORAL HEARING (Wed. Dec 27, 3.15 pm by zoom)

After listening to Bandit lawyer James Minerve obtain a $100 bond on a short statement of fact, Joanna Burke was called next by hand-selected ancillary judge Tami Craft of Court 189. For those familiar, Judge Craft sits in another case involving Joanna Burke, and where the judge’s disqualification was sought.

The decision was swift as expected, the judge DENIED the TRO.

In re Joanna Burke

DEC 28, 2023 | REPUBLISHED BY LIT: DEC 29, 2023
DEC 29, 2023
FEB 21, 2024

Above is the date LIT Last updated this article.

Chapter 13 Trustee’s Final Report and Account (batch)

U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:23-cv-04687

Samuels et al v. PHH Mortgage Corporation et al
Assigned to: Judge Alfred H Bennett

Case in other court:  234th Judicial District, Harris County, 23-59141

Cause: 28:1332 Diversity-(Citizenship)

Date Filed: 12/15/2023
Jury Demand: None
Nature of Suit: 220 Real Property: Foreclosure
Jurisdiction: Diversity

 

Date Filed # Docket Text
12/21/2023 3 NOTICE of Appearance by Cheyenne D. Haley on behalf of AVT Title Services, LLC, filed. (Haley, Cheyenne) (Entered: 12/21/2023)
12/26/2023 4 CERTIFICATE OF INTERESTED PARTIES by AVT Title Services, LLC, filed.(Cronenwett, Mark) (Entered: 12/26/2023)
12/26/2023 5 MOTION to Dismiss Plaintiff Jeff Samuels’ Claims by AVT Title Services, LLC, filed. Motion Docket Date 1/16/2024. (Attachments: # 1 Proposed Order)(Cronenwett, Mark) (Entered: 12/26/2023)
12/26/2023 6 MOTION to Dismiss Intervenor-Plaintiff Joanna Burke’s Claims by AVT Title Services, LLC, filed. Motion Docket Date 1/16/2024. (Attachments: # 1 Proposed Order)(Cronenwett, Mark) (Entered: 12/26/2023)
12/27/2023 7 SUPPLEMENT to 1 Notice of Removal, by AVT Title Services, LLC, filed. (Attachments: # 1 Exhibit)(Haley, Cheyenne) (Entered: 12/27/2023)
01/16/2024 8 MOTION to Remand by Jeff Samuels, filed. Motion Docket Date 2/6/2024. (HortenciaLerma, 4) (Entered: 01/16/2024)
02/06/2024 9 RESPONSE to 8 MOTION to Remand , filed by Deutsche Bank National Trust Company, PHH Mortgage Corporation, Power Default Services, Inc.. (Attachments: # 1 Proposed Order)(Stroope, Emily) (Entered: 02/06/2024)
02/09/2024 10 NOTICE of Bankruptcy Filing, Automatic Stay and Request for ECF-Pacer Filing Permissions by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/09/2024)
02/09/2024 11 FIRST Motion for Extension of Time to file initial lists, schedules, statments and other required documents by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/12/2024)
02/09/2024 12 MOTION to Reinstate Case by Joanna Burke, filed. Motion Docket Date 3/1/2024. (TerriHanniable, 4) (Entered: 02/12/2024)

 


 

PACER Service Center
Transaction Receipt
02/21/2024 14:02:35

Case Docket as at Dec. 29, 2023

Mackie Wolf Zientz & Mann, P.C.
14160 North Dallas Parkway
Suite 900, Dallas, TX, 75254

Dec. 28, 2023

URGENT NOTICE: To Email List

My references:

Case No.: 23-3593, Court of Appeals for the 8th Cir.
Case: Burke v. PHH Mortgage Corporation et al

Case No.: No.: 202359141, Court 234, Harris County District Court
SAMUELS, JEFF vs. AVT TITLE SERVICES

Case No.: 202386973, Court 011, Harris County District Court
BURKE, JOANNA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY

Your references:

MWZM No.: 14-003766-670-3
Loan No.: ending in 1333

Dear Sir or Madam

Re: Notice of Bankruptcy Filing – Joanna Burke – Case No: 23-35083,
United States Bankruptcy Court, S.D. Texas

I, Joanna Burke, have filed for bankruptcy protection under Chapter 13 in the United States Bankruptcy Court, Southern District of Texas. The petition was assigned the case number 23-35083 at 10:45 hrs today, December 28, 2023.

Pursuant to the bankruptcy filing, an automatic stay is in effect as of the filing date, providing me with protection from any collection activities, including foreclosure proceedings.

The purpose of this letter is to request that you immediately cease any actions related to my homestead at 46 Kingwood Greens Dr., Kingwood, TX 77339, including, but not limited to, the scheduled illegal foreclosure auction on January 2, 2024, in light of the automatic stay resulting from the bankruptcy petition.

The automatic stay is a statutory injunction that prohibits creditors and their representatives from taking any collection or enforcement actions against me, Joanna Burke, or my property.

Please be advised that any continuation of the foreclosure proceedings after the bankruptcy filing would be a violation of the automatic stay and will subject you to legal consequences. It is imperative that you take appropriate steps to halt the foreclosure process and ensure compliance with the bankruptcy laws.

Enclosed with this letter is a copy of the Notice of Bankruptcy Filing, which includes the case number and filing date for your reference.

Given the urgency of this matter, I emphasize that this is a one-time email. For the record, I have communicated this demand via email to the addresses listed below. I expect a response by no later than 1700 hrs on Friday, Dec. 29, 2023 upon your receipt of this emailed letter, confirming the cancellation of the scheduled sale. A copy should be emailed to joanna@2dobermans.com and/or faxed to +1 (866) 705-0576.

List of email recipients:

kmackie@mwzmlaw.com
bwolf@mwzmlaw.com
mzientz@mwzmlaw.com
mcronenwett@mwzmlaw.com
nframe@mwzmlaw.com
rrebong@mwzmlaw.com
litigationfilings@mwzmlaw.com

Your cooperation is mandatory, to ensure that all your future actions are in compliance with the bankruptcy laws.

Sincerely,

Joanna Burke
46 Kingwood Greens Dr.,
Kingwood, Texas, 77339
Email: joanna@2dobermans.com
Fax: (1) 866-705-0576

Elder abuse in Texas includes physical abuse, mental abuse and emotional abuse. A variety of programs in Texas ensure that senior citizens will not be abused or taken advantage of in any form. Anyone convicted of elder abuse will be charged with a felony in either the first, second, or third degree, depending on the circumstances of the abuse. Texas residents are required by law to report any known elder abuse. Those who don’t will be convicted of a misdemeanor.

The following are orders of the Court:

1.  Payment of the Filing Fee. [PAID IN FULL]

a.  The debtor(s) shall pay the filing fee with the petition or promptly on the due date provided in an order allowing installment payments.

b.  If the filing fee or any installment is not timely paid, the Clerk shall issue a notice of pending dismissal of the case for failure to pay filing fees. The notice of pending dismissal shall be served on the debtor(s), debtor(s)’ counsel and the chapter 13 Trustee.

c.  If the debtor(s) do not pay the filing fee or request a hearing within 10 days after the notice is served, the case may be dismissed without further notice.

2.  Filing the List of Creditors, Plan, Schedules and Statements.

a.  The list of creditors (with addresses) must be filed with the petition in the format prescribed by the Clerk unless a motion for extension of time under Federal Rule of Bankruptcy Procedure (FRBP) 1007(a)(4) is filed with the petition.

b.  A motion for extension of time to file the list of creditors, plan, schedules or statements need be served only on the chapter 13 Trustee and on the U.S. Trustee.

Because the FRBP require a creditor’s meeting within 50 days, except for truly exceptional circumstances, the Court will not grant an extension beyond 25 days for filing the plan, schedules or statements.

c.  If the U.S. Trustee files a motion to dismiss under Bankruptcy Code §1307(c)(9) or (10), or if the chapter 13 Trustee files a motion to dismiss for delay prejudicial to creditors and the basis of that motion is that the debtor(s) failed to file the papers required by Bankruptcy Code §521 or failed to file a plan in accordance with FRBP 3015, the motion need not be served on any party except the debtor(s) and, if the debtor(s) are represented by counsel, on debtor(s)’ counsel.

d.  If either the U.S. Trustee or the chapter 13 Trustee files a motion to dismiss under subparagraph (c) above, the motion need not include BLR 9013 language but shall include the following notice:

A hearing will be conducted on this matter on [insert date of next chapter 13 panel following expiration of 15 days] at       a.m.

If the debtor(s) object to the requested relief, the debtor(s) and counsel must attend the hearing.

If no party objects to the requested relief within (ten) 10 days after the date that the motion was served, the United States Trustee or the chapter 13 Trustee may file a certificate of non−compliance and the Court may dismiss this case without actually conducting a hearing.

(Bankruptcy Code §102(1)(B).)

3.  Confirmation Hearings.

a.  Confirmation hearings will be continued beyond the initial setting only for good cause shown.

A motion for continuance shall be filed setting forth the basis of the cause for the requested continuance.

The chapter 13 Trustee is not authorized to grant a continuance of the confirmation hearing.

Only the Court may grant a continuance of the confirmation hearing.

b.  Absent exceptional circumstances, the hearing on confirmation of the debtor(s) plan will not be continued to a date that is after 180 days after the commencement of the chapter 13 case.

c.  At least 5 days before confirmation, the chapter 13 Trustee shall submit a recommendation (which may be in summary chart form for all cases set for confirmation on a particular date) as to whether plans should be confirmed.

The Court will not be bound by the chapter 13 Trustee’s recommendation for or against confirmation.

If the chapter 13 Trustee has recommended in favor of confirmation and if there are no objections to be considered at confirmation, the debtor(s) and debtor(s)’ counsel need not attend.

If the Court determines that a hearing is required on a plan for which confirmation is recommended by the trustee and on which no other objections were filed, the hearing will be rescheduled with notice to the debtor(s) and debtor(s)’ counsel.

If the chapter 13 Trustee has not recommended confirmation, the debtor(s) and debtor(s)’ counsel must attend the hearing and meet the debtor(s)’ statutory confirmation burden, except that attendance in the circumstances set forth in §7, §8, §9(b) and §9(c) below shall be according to those sections.

4.  Parties Required to Attend Hearings.

This section applies to hearings that are set on the chapter 13 trustee’s scheduled panel.

a.  If a matter has been resolved concerning a motion or an objection, the parties may designate counsel for one of the settling parties to announce the settlement.

Other counsel may, but are not required, to attend.

If no person announces the settlement, the motion or objection may be denied for want of prosecution.

b.  If the Court declines to accept the announced agreement, the matter may be continued until the next chapter 13 panel date or the Court may make another disposition.

All parties to the objection (i.e., the objecting party, the debtor(s) and the chapter 13 Trustee) must attend the continued hearing.

5.  Tax Transcripts.

The Internal Revenue Service must send a tax transcript to the chapter 13 trustee, the debtors and the debtor’s counsel, with detrainry to occur not later than 7 days prior to the initial date set for the §341 meeting of creditors.

6.  Service of this Order.

A copy of this Order shall promptly be served by the Clerk on parties in interest, including the debtor(s) and debtor(s)’ counsel and the United States Internal Revenue Service.

The Internal Revenue Service shall be served at the addresses provided by them from time-to-time to the Clerk.

THIS ORDER IS EFFECTIVE, IN EACH CASE, ON THE DATE THE ORDER IS ENTERED IN THAT CASE. ISSUED AND ENTERED ON 12/29/23

The debtor(s) are ordered to:

1.      Make all payments due to the chapter 13 trustee. The first payment is due not later than 30 days after the petition date.

2.      File a proposed plan within 15 days, unless the plan was filed with the petition.

3.      File a proposed Wage Order, Order for EFT Payments (online banking), or Order for ACH Payments in compliance with Local Rule 1007-1(c).

4.      File all schedules and the statement of financial affairs within 15 days, unless these documents were filed with the petition.

5.      Attend the § 341 meeting of creditors as scheduled by the chapter 13 trustee.

6.      Attend the debtor education seminar within 45 days.

7.      Immediately file all delinquent tax returns.

8.      Comply with all Court orders.

Failure to comply with this order is likely to result in a dismissal of this bankruptcy case. It may also result in a prohibition against the filing of additional bankruptcy cases or a finding that the debtor(s) are in contempt of court.

Issued and Entered on 12/29

ORDER AUTHORIZING USE OF VEHICLES PURSUANT TO §363 AND PROVIDING ADEQUATE PROTECTION TO LIEN HOLDERS

1.                   The Debtor(s) are authorized to use their vehicle(s) pursuant to § 363 of the Bankruptcy Code, conditioned on the following:

A.                   The Debtor(s) must maintain insurance on the vehicle(s) in the amounts and with the coverages pertaining to the vehicle itself required by the contract with any holder of a pre-petition lien on the vehicle(s).

B.                   Proof of insurance must be provided within 5 days of receipt of written request by the holder of a vehicle lien.

C.                   The Debtor(s) must timely make all required payments to the chapter 13 trustee.

D.                   Not later than the date on which a plan is filed, file a proposed (i) wage order; (ii) Order for EFT Payments (Online Banking) and Debtor’s Certification; or (iii) Order for ACH Payments and Debtor’s Certification, each in the form approved by the Court.

2.                   As additional adequate protection for the interest of the lien holder(s), the lien holder(s) are granted a claim pursuant to § 503(b)(1).

This lien is intended to be of the type described in § 507(b) of the Bankruptcy Code. The amount of the claim is equal to 1.25% of the value of the vehicle on the petition date.

The adequate protection payments shall be calculated by the chapter 13 trustee determined as of the date of the filing of the chapter 13 petition and will be equal to 90% of the “Average Price Paid” stated on the website www.jdpower.com (utilizing the version available without charge) for a vehicle (without options or mileage adjustments) located at the first zip code listed for the Debtor on the docket sheet, unless the Court orders otherwise.

3.                   The Debtor(s) or any other party in interest may object to this order within 30 days of its entry.

If a timely objection is filed, an evidentiary hearing will be conducted at the next chapter 13 panel.

The objecting party is ordered to provide notice of the hearing date, attend the hearing and present evidence in support of the objection.

Issued and Entered on 12/29/23

No proof of attendance at an approved credit counseling course has been filed in this case.

1.   11 U.S.C. §521(a) requires Debtors to file certain information.  Fed. R. Bankr. P. 1007(c) requires Debtors to file the list of creditors with the petition and requires Debtors to file the balance of the documents required by §521(a)(1) within 14 days after the petition date, unless extended for good cause shown.

2. Documents:

The Clerk has determined that the Debtor(s) has failed to file the following

Form 106A/B, Schedule A/B (Property)

Form 106C, Schedule C (The Property You Claim as Exempt)

Form 106D, Schedule D (Creditors Who Have Claims Secured by Property)

Form 106E/F, Schedule E/F (Creditors Who Have Unsecured Claims)

Form 106G, Schedule G (Executory Contracts and Unexpired Leases)

Form 106H, Schedule H (Your Codebtors)

Form 106I, Schedule I (Your Income)

Form 106J, Schedule J (Your Expenses)

Form 107, Statement of Financial Affairs for Individuals Filing for Bankruptcy Form 122A-1, B or C-1, as applicable to the chapter (Statement of Current Monthly Income and Calculation of Commitment Period and Disposable Income)

The Clerk has determined that the debtor(s) has failed to file the list of creditors in the form of a mailing matrix.

Copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor(s) from any employer of the debtor(s).

3.                  The Court orders that the foregoing documents must be filed timely.

4.                  11 U.S.C. §521(i) requires the “automatic dismissal” of voluntary bankruptcy cases filed by individuals who are in chapter 7 or chapter 13 bankruptcy cases who do not file all of the information required by §521(a)(1).

Additionally, if the Debtor(s) does not comply with this order, the case will be dismissed without further notice.

5.                  A party must either satisfy the deficiency or file a pleading denying the existence of the deficiency.

Signed December 29, 2023.

Creditor lists must be uploaded to CM/ECF or filed on matrices.

To ensure that the lists you file can be read by the optical scanner and interpreted by the software, please follow these rules.

Your help is essential both for current efficiency and for future improvements.

Matrix:
1. Addresses must be in a format of six lines for every entry with a maximum of 40
characters per line. Use lower and upper case letters. Do not use all capitals. Note that
blank lines have been added to make each address conform to the six line format.

Examples:

Line 1 John Q. Public
Line 2 Attorney at Law
Line 3 123 Main Street
Line 4 Anywhere, Texas 12345!0123
Line 5
Line 6

Line 1 Joanna R. Doe
Line 2 123 Avenue A
Line 3 Anywhere, TX 12345!0123
Line 4
Line 5
Line 6

2. Addresses must be in this order:
Person or Company Name
Optional Description (e.g. Attorney, Division)
Address (street or post office box, not both)
Suite or Apartment Number
City, State, Zip (Use the state’s two!letter abbreviation, without a period)

3. The company or individual’s name must be limited to one line only.

4. Descriptions must be limited to two lines only. Keep it simple. Omit non!essential and
imprecise descriptions. Insert blank lines to provide a six!line entry.

5. Do not include account numbers on the matrix.

6. Zip codes must be on the last line with the city and state. When possible, use all
nine digits with a hyphen inserted. Use capital letters for state abbreviations, with no
periods in or after the letters (i.e. TX).

7. All creditors listed on Schedules D, E and F should be included.

8. The court’s “Receipt of Creditor’s List” must accompany each matrix.

9. Never resubmit a name on a supplemental matrix that was submitted on the original
unless the name or address is being corrected. Do not relist all creditors that appeared
on the original in addition to the changes you are making through filing the supplemental
list.

10. A separate matrix must be filed to add, correct or delete creditors at the same time.
Indicate on the reverse of the matrix whether it added, modified or deleted creditors.
Matrices:

1. Matrices must be on 8 1/2″ x 11″ good quality paper, with a single column on each page
along the one inch left!hand margin. No misaligned columns please.

2. Use one of the typefaces: Courier 10 Pitch (preferred) or Courier 12 Pitch.

3. Laser printed text is preferred. Do not include other information, like letterhead, case
number, page or line numbers, or stray marks.

4. Please do not staple.

NOTE:

Mail that is returned as undeliverable will be given to the attorney for the debtor who will have the
duty to effect notice.

NOTICE

11 U.S.C. § 521(a)(1)(B)(iv) requires a debtor to file “copies of all payment advices or other evidence of payment received within 60 days before the date of the filing of the petition, by the debtor from any employer of the debtor.”

It appears that the debtor in this case has failed to file the payment advices required by § 521(a)(1)(B)(iv).

If the debtor did not have an employer during the 60 days before the date of the filing of the petition, the debtor may file a statement in the form attached to this notice.

The statement must be filed with the clerk of the Court within 45 days after the petition was filed in this case.

Relief from the requirements of § 521 (a)(1)(B)(iv) must be sought in writing, by a motion filed within 45 days of the date the petition was filed in this case.

If the debtor fails to file the required payment advices or the statement in the form attached to this notice, the case will be dismissed effective as of the 46th day following the petition date.

DEBTOR’S RESPONSE TO ORDER REGARDING NECESSITY OF FILING PAYMENT ADVICES

My name is                                       .

I am a debtor in this bankruptcy case. I declare that I did not receive any payment advices or other evidence of payment from any employer during the 60 days before the date of the filing of the bankruptcy petition.

If this case is a joint case, both spouses have signed below to make this declaration jointly with respect to both.

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Executed on                                                                             (date).

Signature of Debtor

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