Legal Elder Abuse: Judicial Warfare, Hostility and Ham-Fisted Bullying in Bad Faith

TO THE HONORABLE JUDGE AND ALL INTERESTED PARTIES:

“[Attorney] Klayman’s six lawsuits are neither so prolific nor so frivolous or harassing in their content that they threaten the order or integrity of the courts’ operations…Klayman’s six suits…do not amount to an intractable flood… in extending the pre-filing injunction to cover filings in all courts, state and federal, as well as “any other forum,” the district court went too far…we vacate the district court’s pre-filing injunction.”

Klayman v. Porter, 104 F.4th 298, 307 (D.C. Cir. 2024)

Plaintiff, Joanna Burke responds to the Defendants motion which should be DENIED for the following reasons:

DEFENDANTS MOTION PRACTICE IS SCANDALOUS

The Defendants odious motion practice is well known to the Plaintiff. They consistently focus on making grossly false statements designed to inflict maximum injury on the law-abiding elder Plaintiff. In this instance, the deception begins with a comparison between the Defendants’ first motion and their second motion.

In their first motion, the Defendants claimed that the Plaintiff had filed six (Doc.11, p.3(3)) lawsuits. Now, this number has suddenly increased to seven (Doc.28, p.2(3)).

The new lawsuit the Defendants attribute to the Plaintiff is the 2011-2018 case filed in this court by DBNTCO, not by the Plaintiff herself.

Clearly, the Defendants are aware of the Klayman opinion and have chosen to manipulate their pleadings through deception, presenting yet another blatant lie.

Dondi Properties Corp. v. Commerce Sav. and Loan Ass’n, 121 F.R.D. 284 (N.D. Tex. 1988) sets standards including candor, diligence, respect, personal dignity, and professional integrity.

In stark contrast, the Defendants reject the principles set forth in Dondi.

Instead, they resort to bad faith motions driven by sinister motives, all while injuring an elder widow in a blatant attempt to illegally purloin her home. Their reliance on proven lies, deception and concealment qualifies them for sanctions due to their malevolent misconduct.

SEVEN REASONS WHY THIS VEXATIOUS MOTION SHOULD BE DENIED

1.      Lack of Subject-Matter Jurisdiction:

The Plaintiff asserts this court lacks subject-matter jurisdiction, undermining the Defendant’s motion. Without jurisdiction, the court cannot adjudicate issues, rendering motions moot (See Plaintiff’s VERIFIED MOTION TO DISMISS FOR LACK OF JURISDICTION, Oct. 3, 2024).

While the Plaintiff acknowledges ancillary motions can be decided without jurisdiction, it does not save this motion as the court lacks capacity to act (see 2).

2.      The Court Has No Capacity to Act:

A judgment is void if the court lacks capacity to act (Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005)). Therefore, the Plaintiff asserts this court cannot rule on ancillary motions, including this one.

3.      No Immunity for Judicial Usurpation:

Plaintiff alleges this court’s continued involvement absent jurisdiction and capacity to act constitutes usurpation of judicial power, confirming a judgment is void (In re Abbott, 954 F.3d 772, 782 (5th Cir. 2020); Will v. United States, 389 U.S. 90, 95 (1967)).

There’s no judicial immunity for void orders (Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980)).

4.      Unique and Separate Purposes of Each Lawsuit:

The Plaintiff details the unique purposes of each lawsuit, emphasizing that Defendants cannot meet the high burden to restrict Plaintiff’s access to the courts or mislabel her as a vexatious litigant.

5.      Defendants Cannot Prove the Loan Exists:

Defendants focus on numerosity, falsely listing cases and motions. The Plaintiff’s lawsuits and interventions always strived to obtain key evidence to prove the non-existence of a loan file or lender application fraud.

Additionally, any purported loan relying upon a void lien has been extinguished by the operation of law.

6.      Procedural Contest and Due Process Violations:

The Plaintiff contests the Defendants’ motion procedurally, arguing their reliance on 28 U.S.C. §1651(a) fails because Defendants cannot invoke 1651(a) in this motion to circumvent due process requirements, only the court.

As established in Welsh v. Lamb Cnty., 5:20-CV-00024-H (N.D. Tex. Sep. 16, 2024), vexatious-litigant designations must adhere to procedural norms.

Additionally, Kennard Law P.C. v. United Airlines, Inc., No. 23-20430 (5th Cir. Aug. 8, 2024), clarifies that noncompliance undermines the motion’s validity and violates Plaintiff’s due process rights.

7. Snap Removal to Federal Court is Judge Shopping:

The Plaintiff asserts Defendants’ snap removal of a state court case was in bad faith. This pattern was seen in both 2018 lawsuits as well, where Burkes’ cases were randomly assigned back to Judge Hittner.

In these proceedings, the Defendants violated the automatic bankruptcy stay, relying upon contrived orders which invent jurisdiction. This manipulation aims to obstruct the Plaintiff’s constitutional right to access the courts, ultimately serving the sole purpose of illegally seizing her home.

The Defendants actions demonstrate a blatant disregard for the legal process and the protections afforded to the Plaintiff.

This behavior serves as a distraction from the essential facts:

any purported lien the Defendants claim to hold has already been extinguished under Texas law.

Their attempts to manipulate the proceedings do not change the reality of the legal landscape, where the Plaintiff’s rights remain intact and any claims to a lien lack validity.

Such tactics only highlight the Defendants’ desperation and the weakness of their position.

SEVEN LAWSUITS? ACTUALLY, IT’S ONLY TWO TEXAS LAWSUITS

Before a court may find that a plaintiff is a vexatious litigant in Texas, the defendant seeking the finding must show…that the plaintiff, “in the seven-year period immediately preceding the date the defendant ma[de] the [vexatious-litigant] motion . . . , has commenced, prosecuted, or maintained at least five litigations as a pro se litigant other than in a small claims court that have been . . . finally determined adversely to the plaintiff, see Tex. Civ. Prac. & Rem. Code § 11.054(1)(A).

The Plaintiff responds with particularity to the motion, Section II (3-15).

The “physical” number of lawsuits filed by the Plaintiff post-2018 is not material to the underlying reasons for each lawsuit. Even relying solely on the “physical” count, there are only two lawsuits which were ultimately determined adversely to the Plaintiff, not seven.

To clarify this conclusion, consider the following:

The Defendants have included lawsuits that are over seven years old at the time of their motion, which should be excluded.

This means the first lawsuit is not applicable, and the second lawsuit is misrepresented in their second motion, where a case filed by DBNTCO is wrongly attributed to the Plaintiff. This Deutsche Bank lawsuit should also be stricken from the count.

This leaves five lawsuits remaining according to the Defendants’ motion.

The third lawsuit (first “physical” lawsuit) involves the case against the mortgage servicer, Ocwen.

This was filed in Harris County District Court and is required to be treated as an “independent” suit per the Fifth Circuit’s guidelines.

Simultaneously, the Plaintiff filed a suit against the Defendants’ counsel, identified as the fourth lawsuit (second “physical” lawsuit).

This separate filing was prompted by the shocking admission from Mark Hopkins that he intentionally withheld the mortgage loan file from the Burkes.

Additionally, the pro se Burkes chose not to include other parties in the Ocwen suit to maintain its status as an “independent” lawsuit, understanding that adding multiple parties could jeopardize it.

The fifth lawsuit (third “physical” lawsuit) aims to challenge the judgment in the Ocwen case, as rendered by the Fifth Circuit, and is void due to the “ClerkGate” scandal.

Similar to the Ocwen lawsuit’s need for independence, this case had to be filed in the court where the original judgment was issued.

The Plaintiff disagrees with Judge Bennett’s legal interpretation regarding the types of lawsuits that can “attack” a prior judgment, a view that law professors have criticized as overly complicated. Even so, regardless of the final judgment, Judge Bennett’s decision mandated dismissal without prejudice, allowing this case to be excluded.

The sixth lawsuit, filed in the District of Minnesota, is an out-of-state federal case that can also be excluded.

It was dismissed without prejudice and involved challenges to “the judicial machinery itself.”

Notably, the court opted to dismiss the case rather than transfer it, which is the standard procedure in similar circumstances, and this refusal contributed to the subsequent decision to appeal to the Eighth Circuit.

Since this federal case was (i) out-of-state and/or (ii) dismissed without prejudice, it is not applicable.

The seventh lawsuit, filed in Harris County District Court to prevent a time-barred foreclosure (subject of these proceedings), should also be excluded from any “physical” case count, as it has not been decided and lacks a final judgment.

Applying “physical” case counting per Tex. Civ. Prac. & Rem. Code § 11.054, the first two lawsuits filed simultaneously in 2018 should be included.

The potentially third and final “physical” lawsuit is the 2021 federal case challenging the judgment before Judge Bennett. However, it is undisputed that this case should have been dismissed without prejudice.

Plaintiff has determined this should be excluded, as the error is valid on its face of the order.

Under Texas law, a minimum of five lawsuits within the last seven years is required to even consider an individual as a vexatious litigant.

Summary:

When applying the proper legal standards, the seven lawsuits attributed to the Plaintiff effectively translate to only two actionable lawsuits according to Texas law.

The Defendants motion should be DENIED on this basis alone.

THE STANDARD FOR A PRE-FILING INJUNCTION HAS NOT BEEN MET

First, in section at (23) the Defendants admit “The District court has the power” under section 1651 and not the Defendants. This motion should be stricken as discussed in the “Seven Reasons Why” section.

Second, the Plaintiff does not even come close to meeting the “level of vexatiousness” necessary for the court to use its inherent authority, but even if Plaintiff met the level, the court would be required to consider lesser sanctions first.

Third, Section 1915 (26) is the In Forma Pauperis (“IFP”) statute (27) and inapplicable to the Plaintiff, who pays for her lawsuit costs and fees and is not subject to pre-screening; Brewster v. Abendroth, 3:24-cv-671-K-BN, at *1 (N.D. Tex. Apr. 3, 2024).

THE FOUR-PRONG TEST

“(1) the party’s history of litigation…; (2) whether the party had a good faith basis…; (3) …the burden on the courts and other parties…; and (4) …alternative sanctions.” –  Baum v. Blue Moon Ventures, 513 F.3d 181, 189 (5th Cir. 2008)

Defendants recite the four-prong test (27) and proceed to detail why they believe that the four tests apply to Plaintiff (28-35). Plaintiff summarizes each test and why they do not apply.

(1)   The History (28-29):

Paragraph 28 is largely a diatribe.

In paragraph 29, the Defendants attempt to undermine the Plaintiff’s financial status, completely reversing the allegation made by Mark Hopkins in open court, where he inferred the Burkes were hiding assets. (4:11-cv-01658, SDTX, Doc.126, P.13-14).

Regardless of the circumstances, these Defendants will engage in bad faith advocacy, shifting their positions with groundless accusations to manipulate the court and distract from the substantive issues at hand.

(2)   Good Faith (30-32):

In paragraph 30, Judge Bennett adopted the litigation history presented in the Defendants’ vexatious litigant motion verbatim; nonetheless, he correctly denied their motion.

However, the adopted litigation history has proven materially inaccurate, with Texas courts agreeing with the Plaintiff’s objections as further elaborated in this motion.

See; Serafine v. Crump, No. 23-0272 (Tex. June 21, 2024).

In paragraphs 31 and 32, there has been one consistent thread throughout these federal proceedings: the Defendants’ sinister gamesmanship.

The Fifth Circuit has succinctly defined fraud as implying “bad faith, intentional wrongdoing, and a sinister motive.” Fraud is often inferred from conduct that is likely to mislead or conceal (Payne v. C.I.R, 224 F.3d 415, 420 (5th Cir. 2000)).

By misleading this court, the Defendants fail to acknowledge, defend, or even mention the true purpose of the Plaintiff’s civil lawsuit; to prevent any and all attempts by the Defendants using an expired and deficient Order and redundant power of sale to execute illegal nonjudicial foreclosure of her home and as discussed in writing with Defendants appointed substitute trustee’s counsel, Mark Cronenwett (MSJ, p.9, p.12(1)).

Additionally, the Plaintiff still seeks to obtain quiet title to her property, which is clouded by a void lien (MSJ p.16-18).

By engaging in deceptive practices, the Defendants further conceal these essential facts. They are fully aware that the statute of limitations has expired, and along with it the power of sale.

Their silence in their court pleadings will not change that reality.

It is evident that their only hope lies in persuading the federal court to label the Plaintiff as a vexatious litigant.

They aim to secure a pre-filing injunction to facilitate the execution of foreclosure in violation of established Texas law.

(3)   Burden (33-34):

In response to paragraph 33, the only burden is carried by Joanna Burke in her legal attempts to end this character assassination by Defendants and their counsel who have a repugnant history of admonishments, sanctions and billions of dollars in fines, as detailed recently in the Texas cases and subsequent settlements involving the Defendants (e.g. Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV, Tex. App., filed Sep. 19, 2019).

In response to paragraph 34, see the sections below addressing the courts involvement directly.

(4)   Alternatives (35):

First, the Defendants conveniently overlook that, until November 29, 2018, the Plaintiff successfully defeated DBNTCO twice in this court, while it was the Defendants who appealed, extending the litigation unnecessarily.

Second, in August 2023, the Defendants expressed a desire to settle the dispute. Their settlement offer is available for in camera review to maintain the confidentiality of the discussions.

This suggests that (a) the Plaintiff’s lawsuits are made in good faith and have merit, and (b) there is a viable path to resolving this protracted dispute without further litigation or court intervention.

Indeed, a settlement was reached earlier this year after a $4 million judgment involving the same Defendants in Texas.

See; Plaintiff’s Response to Defendants MSJ, Oct. 3, 2024, p.2 (7), p.8-10, p.14, p.18 (Ocwen Loan Servicing, LLC v. Jones, No. 13-22-00425-CV, Tex. App., filed Sep. 19, 2019) (MSJ, p.14: EXHIBIT DBJONES-MSJ).

The presiding judge in Jones was appalled by the Defendants’ “criminal” conduct, which led to the conversion of traditionally capped damages into millions of dollars in exemplary damages for the homeowners.

The Joneses have similarly suffered egregious abuses from the Defendants since the financial crisis, including multiple fraudulent foreclosures, revealing a striking pattern.

Alternatively, the Plaintiff could seek a judgment of quiet title as required by Texas law and subsequently pursue “criminal” damages in alignment with the Jones award..

DEFENDANTS AND HOPKINS’ SCANDALOUS TRACK RECORD OF FRAUD

“Federal and state regulators and prosecutors have determined that Deutsche Bank, Ocwen, and Homeward have engaged in systematic mortgage fraud and abuse for years, before, during and after all relevant times to the claims made in the lawsuit.

Despite multiple findings of fraud and abuse, and consent orders requiring future compliance, Bank Defendants have: failed and refused to correct their misconduct. Plaintiffs Consuelo Jones and Gabriela Jones are victims of Bank Defendants’ pattern of fraud and abuse.”

– citing from Jones case above; Findings of Fact and Conclusions of Law from the 93rd District Court in Texas

Plaintiff vs. Defendants History:

The Defendants have faced billions in fines and penalties, cojoined with sanctioned foreclosure mill, BDF (Thomas v. Prof’l Law Firm & Corp. of Barret, Daffin, Frappier, Turner & Engel L.P., CIVIL ACTION No. 4:13-cv-2481, at *4 (S.D. Tex. Aug. 19, 2014)).

BDF represented DBNTCO from 2011-2015, where Shelley Hopkins was initially employed. Defendants’ counsel, Mark Hopkins of Hopkins & Williams, PLLC, and Shelley Hopkins, “of counsel” for BDF and jointly as Hopkins Law, PLLC, have violated numerous laws since their unannounced arrival in 2015/2016, after the Burkes defeated DBNTCO in a bench trial where the bank failed to produce any reliable evidence (4:18-cv-04543 Doc. 13, 01/25/19 in TXSD, P.1.).

Concealing Evidence:

The Burkes were unaware of the critical withholding of their mortgage loan file, which Mark Hopkins admitted in open court. This concealment occurred after the case was remanded in 2017, when the Burkes’ “fraud” claim had been dismissed, yet no sanctions were imposed for this act.

Concealing Contradiction:

Mark Hopkins claims foul play, arguing that withholding evidence is ‘dishonest’ while seeking relief from the court.

“On September 13, 2018, BONYM moved for a new trial and raised the settlement agreement as one of the basis for the new trial. The motion essentially stated;  “Your honor we have this settlement agreement were The Rileys agreed to an uncontested foreclosure, our former counsel was unaware of the settlement agreement and The Rileys were dishonest and remained silent on the existent of this agreement. (paraphrased).” – Mark Hopkins.

See; Fifth Circuit Case: 21-40383 Document: 00516057803 Page: 21: 10/18/2021.

Shelley Hopkins’ Perjury:

In Hicks v. Cenlar FSB (4:20-cv-01661, SDTX, Doc. 25-9, 07/28/21), shortly after Shelley Hopkins joined as co-counsel, she submitted a doctored affidavit for attorney fees related to BDF’s sanctions (Schmitgen v. Servis One, Inc., 2:18-CV-00074, Doc. 46, Jan 16, 2020).

The manually affixed signature of Crystal G. Gibson to the Affidavit for attorney’s fees.

PPP Loan Fraud:

Public records indicate that “Hopkins Law, PLLC” reported itself as a female-owned business during the PPP loan period and claimed to employ at least three people.

Allegations arise that the company misrepresented its situation, mirroring aspects of the case against Mr. Crowther regarding nominee loans and false pretenses (United States v. Crowther, No. 2:20-cr-00114-JLB-MRM, at *6 (M.D. Fla. Jan. 6, 2021)).

“There are 2 PPP loans for a total of $93,227 in our database for businesses with the name “Hopkins Law PLLC” in Austin, TX. This this is typically due to the same business receiving both first and second-draw loans.”

(And to qualify for the second loan you need to show a 25% reduction in income. https://2dobermans.com/woof/58).

Document Fabrication in DBNTCO Case:

Mark Hopkins sought to reopen the trial record to present the “wet ink original of the Note” well after the deadline, which Hon. Stephen Wm. Smith criticized as an inappropriate late request (Deutsche Bank Nat’l Trust Co. v. Burke, 4:11-CV-01658 (S.D. Tex. July 31, 2015)).

PNC Document Fabrication:

In PNC Mortg. v. Howard, 616 S.W.3d 581, 583 (Tex. 2021), another foreclosure case, Hopkins’ attempt to introduce “new evidence” was rejected by the judge.

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

He also misrepresented the use of a pre-merger name.

Sanctions and Referral to the State Bar:

Sanctions and a referral to the State Bar are warranted due to the mandatory ethical duties of judges (Warrilow v. Norrell, 791 S.W.2d 515, 523 (Tex. App. 1990); Comm’n for Lawyer Discipline v. Cantu, 587 S.W.3d 779, 784 (Tex. 2019)).

THE SORDID CHIEF JUDGE OF SDTX (BK) CORRUPTION SCANDAL

In advance of this motion, the Plaintiff prepared a detailed VERIFIED RESPONSE TO PHH’S MOTION FOR SUMMARY JUDGMENT (“MSJR”, Oct. 3, 2024) to the Defendant’s oversized, unauthenticated, and generally incompetent MSJR.

She respectfully requests that this court take judicial notice of that MSJR and 18 supporting exhibits and her VERIFIED MOTION TO DISMISS FOR LACK OF JURISDICTION (“DLOJ”, Oct. 3, 2024).

In closing her DLOJ (p,19), she cited to Chief Judge Alia Moses opinion in the high-profile whistleblower case involving former Chief Judge David Jones and his not-so-secret romantic relationship with former clerk Elizabeth “Liz” Freeman.

This federal court scandal in Texas, marked by greed, sex, money, fraud, and corruption, has led to numerous lawsuits from parties seeking restitution for tainted opinions issued by Jones.

Allegations also suggest that appeals from his questionable decisions were erroneously affirmed by his judicial colleagues.

Accusations of abuse of power, nepotism and conflicts of interest have emerged, implicating a close-knit group of Texas bankruptcy law firms, including counsel from both sides of the bench with personal ties to Jones and Freeman.

This scandal, involving the judiciary and prominent Texas law firms overseeing billions in bankruptcy restructuring annually, has triggered efforts to contain the fallout and allegations that these conflicts were well-known in the courthouse and Texas legal community, starting with Jones’s resignation instead of impeachment.

Judicial Statement of Significance:

The Chief Judge’s entire passage deserves to be embedded in this motion due to its importance and relevance to these proceedings:

“Just because the Plaintiff and his lawyers have previously violated Rule 11 does not mean they have done so here. Assuming the truth of the Plaintiff’s allegations, he was a victim of a conspiracy that deprived him of fair access to the federal courts and extinguished a valuable interest in McDermott. Although the Plaintiff fails to state a valid cause of action, his allegations, if true, show that he suffered injustice in Jones’s courtroom.

The Court will not punish the Plaintiff for seeking to redress his grievances in a forum in which, for once, the deck is not stacked against him. True, the Plaintiff has a history of filing meritless claims about supposed public corruption.

But this time, he was right. Time and time again, the most powerful players in the bankruptcy system dismissed him as another crazed, vexatious litigant.

And now, in one final twist of the knife, Kirkland seeks to punish the Plaintiff for having the audacity to sue it. The Court will not oblige.

After all, it was the Plaintiffs audacity that brought this scandal to light. Had the anonymous letter arrived in anyone else’s mailbox, perhaps Jones would still be on the bench, awarding millions of dollars to Kirkland and Jackson Walker.”

Van Deelen v. Jones, 4:23-CV-03729-AM, at *35-36 (S.D. Tex. Aug. 16, 2024)

JUDICIAL SCANDALS ILLUMINATE JOANNA BURKE’S 13-YEAR FIGHT FOR JUSTICE

The “Jones Romance Scandal” exemplifies a broader issue in the courthouse, revealing attempts by Defendants and the court to maintain invented jurisdiction in order to facilitate restricting the constitutional right of access to the courts for the Plaintiff, an 85-year-old widow.

The goal is to impose a pre-filing injunction, mislabeling her as a vexatious litigant for exposing the fraudulent practices of a predatory lender and its appointed counsel. Such restrictions would enable the Defendants to unlawfully seize her homestead of over 22 years, potentially resulting in her eviction through force, including lethal means.

This effort aims to silence the Plaintiff and targets her First Amendment right to free speech, perpetuating a personal vendetta against her as an honest elder citizen. This is supported by the Defendants continued bad faith, scandalous lies, and untruths scrawled with sinister motives at 19-20 of their motion.

A search of public records easily confirms the true ownership of the online blogs, which excludes Plaintiff. Plaintiff denies all these unfounded and scandalous allegations.

As for her first amendment rights to support any news media outlet or high-profile public figure on social media or otherwise, that isn’t subject to scrutiny in these proceedings, where all parties are protected by judicial-proceedings privilege.

In 2017, Defendant’s counsel, Mark Hopkins, openly admitted to concealing the mortgage loan file during a status conference with Magistrate Judge Stephen Smith (Deutsche Bank National Trust Company v. Burke, 4:11-cv-01658, SDTX, Doc.126, P.13, TRANSCRIPT re: STATUS CONFERENCE held on 1-27-17), revealing a lack of documentation for the alleged $615,000 mortgage debt (Doc. 28(2)). This admission raises serious concerns about transparency and justice.

A historical context highlights the hostility of this court towards the Burkes’ as early as 2011, such as Judge Lynn Hughes’ ex parte conversation in 2011, where he advised Akerman’s lawyers to “get their ducks in line before coming back”, after the Plaintiff pointed out discrepancies in the mortgage papers presented.

They never returned.

In light of the Fifth Circuit’s opinions in Burciaga v. Deutsche Bank Nat’l Trust Co. and Christiana Tr. v. Riddle, the Burkes initiated legal action against Ocwen Loan Servicing LLC for concealing the mortgage loan file. As they filed a new lawsuit, they also sought to intervene in three other cases, hoping to recover their missing file.

A potential breakthrough occurred in a Florida case where a federal judge released a loan file, yet denied their motion to intervene, further complicating their efforts. Meanwhile, in Texas, the Defendants moved swiftly for a dismissal, which ultimately occurred without due process or discovery.

Despite obstacles, the Plaintiff remained determined to obtain the missing mortgage file. She filed a new lawsuit in Minnesota, tied to a high-profile case scrutinizing predatory loans, with findings that upheld claims of predatory lending practices related to Ocwen during the 2008 financial crisis.

The Plaintiff asserts that if the evidence were presented to an independent jury, it would reveal a deliberate affront to justice aimed at unlawfully seizing her home.

“Remember the LITAMO” will be her rallying cry to supporters and her last stand as an activist for truth, freedom, and justice in her Alamo-inspired Texas homestead along the San Jacinto River.

THIS FEDERAL DISTRICT COURT’S “HAM-FISTED BULLYING”

“This case is the most recent of many cases that Plaintiff [Joanna Burke] has filed over the past several years to thwart foreclosure proceedings…”

Magistrate Judge Christina Bryan (S.D. Texas, Houston Div’n, Doc. 31, Sep.18, 2024)

Warfare from Magistrate Judge Bryan:

In light of all these recent revelations, the Plaintiff has reflected on this initial order, issued after Judge Werlein’s hit-and-run self-recusal. Former Texas Supreme Court Justice and current Fifth Circuit Judge Don Willett noted that the Constitution was crafted to restrain government overreach:

“Our Framers understood that government was inclined to advance its own interests, even to the point of ham-fisted bullying, which is precisely why the Constitution was written—to keep government on a leash, not We the People.

But individual liberty pays the price when our ingenious system of checks and balances sputters, including when the judiciary subordinates liberty to the congeries of group interests that dictate majoritarian outcomes.”

Hostility from Judge Werlein:

The hostility started when Judge Werlein’s asserted that this court had ‘related to’ jurisdiction over the case. His dismissal of motions displayed a lack of judicial restraint and a failure to adhere to the established rule of orderliness, specifically rejecting the General Order (2012-06) that transfers jurisdiction to the bankruptcy court. The Plaintiff finds no judgment supporting Judge Werlein’s analysis; the Chief Bankruptcy Judge explicitly rejected it.

Mislabeling of Bankruptcy Protections:

Judge Werlein’s reasoning implies that there is no bankruptcy stay for cases in state court to halt a time-barred wrongful foreclosure, labeled as “by the debtor.” He ignored recent federal orders that automatically stayed such cases, including his own (DLOJ, p.3-4).

Denial of Amendments:

He also denied the Plaintiff’s attempts to amend her pleadings Doc.18-19), rejected her Partial Motion for Summary Judgment (Doc.20; MSJ, p.16), and dismissed remaining parties (Doc.23) to restrict her case before the court.

Judicial Activism:

Judge Werlein’s actions exemplify judicial activism, particularly through his prejudgment of issues, undermining due process and impartiality, as witnessed in his warning, Doc.19 (p.3-4).

Failure to Consider Evidence:

His actions indicate a disregard for thorough examination of facts.

Ignoring Precedents:

By asserting ‘related to’ jurisdiction without basis, he disrupted established legal parameters, raising questions about judicial integrity.

Guidance to Defendants:

After his ex parte communications decimated the Plaintiff’s case by proclaiming ‘related to’ jurisdiction, thereafter issuing a collected series of orders, combined with his instructions to the Defendants on how to obtain a favorable judgment, based on a misleading understanding of the facts—commonly referred to as prejudging the case, reveal bias and compromise his role, confirmed by his related orders and hasty departure.

Questioning Bad Faith:

As stated by the Chief Bankruptcy Judge overseeing another “Jones Romance Scandal” case, “The Court finds this argument to not only be entirely without merit but made in bad faith.”

In re Prof’l Fee Matters Concerning the Jackson Walker Law Firm, No. 23-645, at *13 (Bankr. S.D. Tex. Aug. 16, 2024)

The Plaintiff agrees:

Judge Werlein’s arguments lacked jurisdiction, lacked merit and were made in bad faith.

CAPACITY, VOID JUDGMENTS AND USURPATION

Capacity to Act:

As established in Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991), actions taken by a trial judge that exceed their authority are void.

Here, Judge Werlein has acted beyond his jurisdiction, lacking the capacity to issue valid orders.

This is further supported by Sotelo v. Scherr, 242 S.W.3d 823, 830 (Tex. App. 2007), which confirms that a judgment is void if the court lacks jurisdiction, as reiterated in Browning v. Prostok, 165 S.W.3d 336, 346.

Legal Implications of a Void Judgment:

A void judgment is essentially a legal nullity, conferring no rights upon any party. As stated in Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 343 (1872), such judgments are treated as if they never occurred, echoed in Schmidt v. Rodriguez, CASE NO: 12-07018 (Bankr. S.D. Tex. June 15, 2013), confirming that void judgments neither bestow nor deprive rights.

Judicial Accountability and Immunity:

Judicial officers, including the judges in these proceedings lack immunity when acting outside their jurisdiction. Williams v. Wood, 612 F.2d 982, 985 (5th Cir. 1980), illustrates that no immunity extends to judges acting beyond their authority, emphasizing accountability for actions taken without proper capacity.

Usurpation of Judicial Power:

The usurpation of judicial power is central to this case. The Plaintiff contends that Judge Werlein has exceeded his jurisdiction, which is crucial for establishing the judgment as void. In re Abbott, 954 F.3d 772, 782 (5th Cir. 2020), states that usurpation occurs when courts exceed their jurisdiction or fail to act as required.

In closing, this highlighting serious constitutional violations and Plaintiff questions this court’s inherited authority to decide this motion.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. § 1746.”, I hereby provide my unsworn declaration. My name is … and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

“The kind of advocacy shown by this record has no place in the administration of justice and should neither be permitted nor rewarded; a trial judge should deal promptly with any breach.” (United States v. Young, 470 U.S. 1, 9 (1985)). It is patently obvious this motion has been brought in bad faith and should be DENIED. A proposed order is provided

RESPECTFULLY submitted this 7th day of October, 2024.

Defendant PHH Mortgage Corporation (“PHH”) files this Second1 Motion to Declare Plaintiff Joanna Burke (“Plaintiff” or “Burke”) as a Vexatious Litigant pursuant to 28 U.S.C. §1651(a), and in support thereof, would respectfully show unto the Court as follows:

I. SUMMARY

1.                  The present lawsuit represents the most recent filing in an extended line of lawsuits, appeals, attempted interventions and frivolous bankruptcies filed by Joanna Burke in her continued effort at stalling the foreclosure of the real property2 where she has lived for over fourteen years without paying her mortgage.

Despite Deutsche Bank National Trust Company, as Trustee of the Residential Asset Securitization Trust 2007-A8, Mortgage Pass-Through Certificates, Series 2007-H Under the Pooling and Servicing Agreement dated June 1, 2007 (“DBNTC”), obtaining a judgment granting foreclosure in 2018 from this Court (the judgment being affirmed by the Fifth

1 In accordance with this Court’s Order of June 17, 2024, denying without prejudice PHH’s Motion to Declare Plaintiff as a Vexatious Litigant [Doc. 19], PHH now files this Second Motion simultaneously with its motion for summary judgment.

2 46 Kingwood Greens Drive, Kingwood, Texas 77339 (“Property”).

Circuit), Burke has continued her onslaught of frivolous filings with the courts.

Burke’s filings are designed to abuse the judicial system by filing anything and everything in ‘any and every’ court that will accept her filings.

As stated by the Fifth Circuit Court of Appeals in its ruling against Burke (almost six years ago),

“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) (emp. added).

Undeterred by the Fifth Circuit judgment, Burke has continued abusing the judicial process, the judiciary and counsel by utilizing every forum possible to contest the impending foreclosure, fabricate new claims and simply harass the bank and all of its attorneys.

This abuse of the judicial process and harassment of PHH, DBNTC and all of its counsel must end.

II. BACKGROUND

2.                  The underlying facts in this case remain essentially unchanged as previously analyzed by the Fifth Circuit and this Court.

See, Deutsche Bank v. Burke, 902 F.3d 548, 552 (5th Cir. 2018); Burke v. Ocwen, 855 Fed. Appx. 180 (5th Cir. 2021); Burke v. Ocwen Loan Servicing, LLC, No. 21-cv-2591, 2022 U.S. Dist. LEXIS 180610 (S.D. Tex. Aug. 29, 2022).

On May 21, 2007, Burke executed a $615,000.00 Texas Home Equity Note (the “Note”), secured by a Texas Home Equity Security Instrument (“Deed of Trust”) encumbering the Property.

Despite receiving the benefits of the Note, Burke stopped making payments on the loan in 2010. Since that time, Burke has not paid for taxes or insurance for the Property.

3.                  Burke has filed seven lawsuits, four interventions, two bankruptcies and one adversary proceeding, with the sole goal of remaining in the Property. Burke has abused the judicial system in pursuing her personal vendetta against the mortgagee, mortgage servicers, counsel and any judge she believes has committed alleged elder abuse or other imaginary offense against her.

Every single lawsuit has been resolved against Burke. Burke’s baseless, repetitive and frivolous actions are summarized as follows.

4.                  First Lawsuit.

In response to the expedited foreclosure application being filed, Burke filed suit in Harris County District Court on December 6, 2010 alleging breach of contract, violation of Texas Deceptive Trade Practices Act (“DTPA”), and violation of Real Estate Settlement Procedures Act (“RESPA”).

Burke v. Indymac Mortgage Services, et al., Cause No. 2010-79352.

After Defendants removal to the Southern District of Texas (Case No. 4:11-cv- 00341), the suit was dismissed without prejudice.

5.                  Second Lawsuit – Foreclosure Lawsuit.

On April 29, 2011, the beneficiary of the deed of trust pursuant to assignment, DBNTC, filed suit seeking foreclosure of the deed of trust in this Court.

Deutsche Bank Nat. Trust Co. v. Burke, Case No. 4:11-cv-01658.

In response, Burke brought counterclaims asserting claims for (1) fraud, (2) breach of contract, and (3) contesting the validity of the deed of trust. After extended litigation, the Fifth Circuit rendered judgment in favor of DBNTC.

Deutsche Bank Nat. Trust Co. v. Burke, 902 F.3d 548, 552 (5th Cir. 2018).

The litigation involved two appeals to the Fifth Circuit due to an error of former Magistrate Smith in analyzing the validity of assignments involving MERS.

The Fifth Circuit first reversed and remanded, but after Magistrate Smith reach his same conclusion, the Fifth Circuit reversed again and rendered judgment in favor of DBNTC.

6.                  On November 28, 2019 [SIC 2018], the trial court issued the Foreclosure Judgment.

See Deutsche Bank Nat. Trust Co. v. Burke, Case No. 4:11-cv-01658 at Doc. 145.

Thereafter, the United States Supreme Court denied Burke’s petition for writ of certiorari.

Burke v. Deutsche Bank Nat. Trust Co., 139 S. Ct. 2660 (2019).

7.                  Third Lawsuit.

Displeased with the Fifth Circuit and the foreclosure judgment, Burke filed suit against PHH’s predecessor in state district court. Burke v. Ocwen Loan Servicing, LLC, Cause No. 2018-82450.

Burke again asserted claims for breach of contract, breach of the duty of good faith and fair dealing, fraud, negligence, negligent misrepresentation, unfair competition, RESPA and “(o)ther Texas laws.”

Ocwen removed that case to this Court.

On February 22, 2019, the Court dismissed Burke’s claims as barred by res judicata.

The Court gave Burke the opportunity to amend her RESPA claim, yet she failed to do so.

Burke’s claims were then dismissed.

On Appeal, the Fifth Circuit affirmed the judgment(s) of the District Court in a consolidated appeal with Burke’s suit against counsel.

See Burke v. Ocwen Loan Servicing, LLC, 855 Fed. Appx. 180 (5th Cir. Mar. 30, 2021).

8.                  Fourth Lawsuit.

On the same day, Burke sued the DBNT and Ocwen’s counsel – Mark Hopkins, Shelley Hopkins and Hopkins Law, PLLC.

In that suit, Burke brought claims for fraud, civil conspiracy, unjust enrichment, and alleged violations of both the Texas Debt Collection Act (“TDCA”) and the FDCPA against the attorney defendants.

Counsel removed that case to this Court. Burke v. Hopkins Law, PLLC, et al., Case No. 4:18-cv-04543.

In its dismissal, the Court found that Burke’s claims for fraud, civil conspiracy, and unjust enrichment were frivolous and barred by attorney immunity, and that she failed to state a claim for violation of FDCPA or the TDCA.

The Fifth Circuit affirmed. See Burke v. Ocwen Loan Servicing, LLC, 855 Fed. Appx. 180 (5th Cir. Mar. 30, 2021).

9.                  First Attempted Intervention.

While the Third and Fourth Lawsuits remained pending, Burke filed a Motion to Intervene in a wholly unrelated case brought by the Consumer Financial Protection Bureau (“CFPB”) against Ocwen, pending in the Southern District of Florida, Case No. 9:17-cv-80495, Consumer Financial Protection Bureau v. Ocwen Financial Corp., et al.

On May 30, 2019, the court denied Burke’s Motion to Intervene and the court of appeals affirmed. Burke v. Ocwen Financial Corporation, 833 Fed. Appx. 288 (11th Cir. Nov. 2, 2020).

On May 19, 2021, Burke renewed her request to intervene, the court again denied intervention and the court of appeals affirmed. Burke v. Ocwen Financial Corporation, No. 2022 WL 599156 (11th Cir. Mar. 1, 2022).

10.              Second Attempted Intervention.

While the Third Lawsuit, Fourth Lawsuit and First Attempted Intervention remained pending, Burke filed a Motion to Intervene in another unrelated lawsuit pending in the United States District Court for the Northern District of Illinois, Jose L. Parra v. Ocwen Loan Servicing, LLC, Case No. 1:18-cv-5936, based upon complaints about Ocwen’s accounting on Burke’s Texas loan.

On February 27, 2019, the court denied Burke’s request to intervene.

See Parra v. Ocwen Loan Servicing, LLC, Case No. 1:18-cv-5936, [Doc. 31].

11.              Third Attempted Intervention.

On January 17, 2019, while the Third & Fourth Lawsuits and First and Second Attempted Interventions remained pending, Burke filed a Motion to Intervene in a lawsuit pending in federal court in Kansas, In Re Syngenta AG MIR162 Corn Litigation, Kenneth P. Kellogg, et al. v. Watts Guerra, LLP, et al., Case No. 2:18-cv-2408 and 2:14-md-2591.

This suit involved multidistrict corn class action litigation as well as the attorneys’ representation of the class.

Burke’s asserted grounds for the intervention were due to lawyer fraud and malpractice, though Burke is not a farmer and had no specific relation to the litigation.

The Court denied Burke’s Motion to Intervene.

See Kellogg, et al. v. Watts Guerra, LLP, et al., Case No. 2:18-cv-2408, [Doc. 164].

12.              Fifth Lawsuit.

On August 9, 2021, Burke filed suit again, against the Ocwen Loan Servicing, LLC, Mark Daniel Hopkins, Shelley Hopkins and Hopkins Law, PLLC, attempting to attack the prior judgments against her.

See Burke v. Ocwen Loan Servicing, LLC, 2022 U.S. Dist. LEXIS 180610 (S.D. Tex. Aug. 29, 2022).

The Court dismissed the suit with prejudice and in doing so warned Burke against future filings, stating:

“Plaintiffs are hereby warned that any additional litigation against Defendants related to the Property or its foreclosure proceedings will be clear and compelling evidence of bad faith, such that the imposition of sanctions and pre-filing injunctions would be just.” Id. at *15.

13.              Sixth Lawsuit.

In typical Pro Se forum-shopping style, Burke filed another lawsuit in Minnesota federal court seeking redress for the alleged wrongs committed by PHH, Mark Hopkin, Shelley Hopkins, Hopkins Law, PLLC and Christina Gardner (clerk at the Fifth Circuit Court of Appeals).

The court dismissed Burke’s case for improper venue on October 30, 2023.

Burke v. PHH Mortg. Corp., Case No. 0:23-cv-01119 at Doc. 26.

The Eighth Circuit Court of Appeals affirmed dismissal.

Burke v. PHH Mortgage Corp., 2024 U.S. App. LEXIS 12750 (8th Cir. Feb. 5, 2024, rh’g denied).

14.              Fourth Attempted Intervention.

On December 5, 2023, Burke filed a motion to intervene in a fourth unrelated lawsuit pending in Harris County, Texas. Samuels v. PHH Mortg. Corp., et al.

On December 15, 2023, the case was removed to the Southern District of Texas, Case No. 4:23-cv-4687 and the case remains pending.

15.              Seventh (Present) Lawsuit.

Angered at the impending January 2, 2024 foreclosure of the Property, Burke filed this suit to stop the foreclosure sale, suing the mortgagee, mortgage servicer, substitute trustee and foreclosure counsel.

Herein, Burke renews her lengthy crusade of filing repetitive claims, taking aim at anyone involved with the foreclosure of her home loan, including adding the judge who denied her request for Temporary Restraining Order (“TRO”) while the matter remained in state court.

16.              First Bankruptcy.

After denial of her TRO, Burke filed for bankruptcy protection, with the sole intent to stop the impending foreclosure. In re Burke, Case No. 23-35083 (Bankr. S.D. Tex).

On January 17, 2024, Burke’s Bankruptcy was dismissed for failing to file any schedules, statement of financial affairs, statement of income or a creditor matrix.

17.              Second Bankruptcy.

After learning that the Property was posted for the March foreclosure sale, Burke filed her second bankruptcy. In re Burke, Case No. 24-30885 (Bankr. S.D. Tex).

Burke filed bankruptcy again without any schedules or other information.

The court dismissed the bankruptcy for failure to file required documents on April 1, 2024.

18.              Bankruptcy Adversary Proceeding.

On March 29, 2024, Burke filed suit as an adversary proceeding in her (dismissed) bankruptcy, In Re Joanna Burke, Joanna Burke v. Deutsche Bank National Trust Company, et al., Adversary No. 24-03056.

The Court dismissed Burke’s adversary proceeding on June 4, 2024.

19.              Harassment of Mortgagee, Mortgage Servicer, Counsel and Judiciary.

The background set above does not include the countless number of judicial complaints and/or complaints with the State Bar of Texas against almost all the judges or justices who ruled against Burke in some fashion and/or state bar complaints against attorneys who have represented any party adverse to Burke.

Further, with the assistance of Burke’s son, Mark Burke, Burke maintains a website, https://lawsintexas.com, wherein Burke continually posts mostly fabricated “articles” about Defendants, counsel for mortgagees and mortgage servicers, and the Judiciary, with the sole intent to harass.

Burke then posts links to these fabricated articles on twitter and whatever other social media domain she can use. Many of her social media posts border on threatening, including the “last stand” vs. the U.S government and Texas that she intends to “livestream” and in her comment “Watch Live: Join Me in my Last Stand. Chip in for Funeral Expenses.” See -https://x.com/jcbrhodesia/status/1809287236552389103

And – https://x.com/jcbrhodesia/status/1817718595352150284 – where Burke indicates that she has “defeated” the “Nazi Deutsche Bank.”

20.              Burke has also created spoofed websites where she posts links to these fabricated articles using unauthorized photos of attorneys and members of the judiciary.3

Burke has also taken private photos from members of the judiciary as well as Counsel for Defendants, and has posted

3 See the following: https://judgeowen.com, https://cenliar.com, https://midfirst.mortgage, with her and Mark Burke’s main website being https://lawsintexas.com including a sample of their articles at:

(1) https://lawsintexas.com/a-fifth-circuit-clerk-corruptly-impersonating-appellants-induces-finality-of-appeal/;

(2) https://lawsintexas.com/impeach-judge-david-hittner-thats-the-request-before-the-fifth-circuits-chief-judge-priscilla-owen/;

(3) https://lawsintexas.com/the-investigation-into-bdf-hopkins-the-foreclosure-mill-and-rambo-lawp-firms-in-texas- who-are-bounty-hunters-house-jackers/,

(4) https://lawsintexas.com/why-the-chief-cant-judge-everything-even-with-judicial-immunity/,

(5) https://lawsintexas.com/outlaws-in-robes-texas/.

those photos to X and/or used them in their own personal pages, sometimes even going so far as to doctor the images or include threats.

Due to Burke’s unrelenting abuse of Defendants and the judiciary, Burke should be declared vexatious and enjoined from filing further suits against any Defendant or any party relating to the Property or foreclosure at issue in this suit without first obtaining this Court’s permission.

III.

ARGUMENT AND AUTHORITIES

A.                Request for Judicial Notice.

21.              Pursuant to Fed. R. Evid. 201, PHH requests the Court take judicial notice of the other lawsuits, interventions, bankruptcies and adversary proceeding filed by Joanna Burke including:

a.       John Burke and Joanna Burke v. Indymac Mortgage Services, A Division of OneWest Bank and Deutsche Bank National Trust Company, as Trustee and Mortgage Electronic Registration Systems, Case No. 4:11-cv-00341; U.S. District Court for Southern District of Texas, Houston Division (“First Lawsuit”);

b.      Deutsche Bank National Trust Company, As Trustee v. John Burke and Joanna Burke, Case No. 4:11-cv-01658; U.S. District Court for Southern District of Texas, Houston Division (“Second Lawsuit”). Judgment rendered in Deutsche Bank Nat. Trust Co. v. Burke, 902 F.3d 548, 552 (5th Cir. 2018) and certiorari denied in Burke v. Deutsche Bank Nat. Trust Co., 139 S. Ct. 2660 (2019);

c.       Joanna Burke and John Burke v. Ocwen Loan Servicing, LLC; Case No. 4:18-cv- 4544 in the U.S. District Court for Southern District of Texas, Houston Division (“Third Lawsuit”), affirmed by Burke v. Ocwen Loan Servicing, LLC, 855 Fed. Appx. 180 (5th Cir. Mar. 30, 2021);

d.      Joanna Burke and John Burke v. Hopkins Law, PLLC, Mark Daniel Hopkins, and Shelley L. Hopkins, Case No. 4:18-cv-04543; in the U.S. District Court for Southern District of Texas, Houston Division (“Fourth Lawsuit”), affirmed by Burke v. Ocwen Loan Servicing, LLC, 855 Fed. Appx. 180 (5th Cir. Mar. 30, 2021);

e.       Joanna Burke and John Burke v. Ocwen Loan Servicing, LLC, Hopkins Law, PLLC, Mark Daniel Hopkins, and Shelley L. Hopkins, Case No. 4:21-cv-2591 in the United States District Court for the Southern District of Texas, Houston Division (“Fifth Lawsuit”) and Burke v. Ocwen Loan Servicing, LLC, No. 22-20504, 2023 WL 6374190 (5th Cir. Apr. 25, 2023), appeal dismissed;

f.        Joanna Burke v. PHH Mortgage Corporation, Christina Gardner, Ocwen Loan Servicing, LLC, Hopkins Law, PLLC, Mark Daniel Hopkins, and Shelley L. Hopkins, Case No. 0:23-cv-01119 in the United States District Court of Minnesota (“Sixth Lawsuit”) affirmed by Joanna Burke v. PHH Mortgage Corporation, et al., Case No. 23-3593 (8th Cir. Feb. 5, 2024;

g.      Consumer Financial Protection Bureau v. Ocwen Financial Corp., et al.; Case No. 9:17-cv-80495 in the United States District Court for the Southern District of Florida, West Palm Beach Division, (“First Attempted Intervention”). Affirmed by the Eleventh Circuit in Burke v. Ocwen Financial Corporation, 833 Fed. Appx. 288 (11th Cir. Nov. 2, 2020) and again in Burke v. Ocwen Financial Corporation, NO. 2022 WL 599156 (11th Cir. Mar. 1, 2022);

h.      Jose L. Parra v. Ocwen Loan Servicing, LLC, Case No. 1:18-cv-5936 in the United States District Court for the Northern District of Illinois, Eastern Division (“Second Attempted Intervention”);

i.        In Re Syngenta AG MIR162 Corn Litigation, Case No. 2:18-cv-2408 and 2:14-md- 2591 in In the United States District Court for the District of Kansas, Multidistrict Litigation (“Third Attempted Intervention”);

j.        Samuels v. PHH Mortgage Corporation, et al., Case No. 4:23-cv-4687 in the United States District Court for the Southern District of Texas, Houston Division (“Fourth Attempted Intervention”);

k.      In Re Joanna Burke, Bankruptcy Case No. 23-35083 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (“First Bankruptcy”);

l.        In Re Joanna Burke, Bankruptcy Case No. 24-30885 in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (“Second Bankruptcy”);

m.    In Re Joanna Burke, Joanna Burke v. Deutsche Bank National Trust Company, et al., Adversary No. 24-03056 (filed as adversary proceeding in Case No. 24-30885) in the United States Bankruptcy Court for the Southern District of Texas, Houston Division (“First Bankruptcy Adversary”).

B.                 Standard for a Pre-Filing Injunction.

22.              “No one, rich or poor, is entitled to abuse the judicial process. Flagrant abuse of the judicial process can enable one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.”

Green v. Carlson, 649 F.2d 285, 287 (5th Cir. 1981) (internal citation omitted).

“While the legal system serves many functions, it is not a vehicle for harassing actions at the expense of others.”

Mustapha v. HSBC Bank, USA, No. 4:12- CV-01924, 2013 WL 632856, at *7 (S.D. Tex. Feb. 20, 2013).4

23.              The District Court has the power under 28 U.S.C. §1651(a) to enjoin litigants who are abusing the court system by harassing their opponents.

The Court may rely on its inherent powers, or it may enjoin vexatious litigants under the All Writs Act. Matter of Carroll, 850 F.3d 811, 815 (5th Cir. 2017) (citing Newby v. Enron Corp., 302 F.3d 195, 302 (5th Cir. 2002).

The All Writs Act, codified at 28 U.S.C. §1651(a), authorizes federal courts “to enjoin litigants who are abusing the court system by harassing their opponents.”

See Harrelson v. United States, 613 F.2d 114, 116 (5th Cir. 1980).

“A district court has jurisdiction to impose a pre-filing injunction to deter vexatious, abusive, and harassing litigation.”

Baum v. Blue Moon Ventures, LLC, 513 F.3d 181, 187 (5th Cir. 2008).

In determining whether it should impose a prefiling sanction, the Court considers:

(1) the party’s history of litigation, particular, harassing or duplicative lawsuits;

(2) whether the party had a good faith basis for pursuing the litigation or simply intended to harass,

(3) the extent of the burden on the courts and other parties resulting from the party’s filings,

and

(4) the adequacy of alternative sanctions.

Id. at 189; see also Keculah v. Lloyds, No. 4:23-cv- 03499, 2024 WL 420906 (S.D. Tex. Feb. 5, 2024).

24.              The Court’s inherent authority allows it to “protect the efficient and orderly administration of justice and… to command respect for [its] orders, judgment, procedures, and authority” and this authority includes ability to levy sanctions in response to abusive litigation practices.

In Re Stone, 986 F.2d 898, 902 (5th Cir. 1993); also see Nicholson v. Turner, No. 4:24-

4 As quoted by United States Magistrate Judge Sam Sheldon in recommending vexatious declaration of a pro se litigant in Ford v. American Homes 4 Rent, No. 22-cv-2162, 2023 U.S. Dist. LEXIS 78351 (S.D. Tex. Apr. 24, 2023).

cv-00389-O, 2024 U.S. Dist. LEXIS 128479 (N.D. Tex. July 22, 2024)

(declaring Nicholson a vexatious litigant under the Court’s inherent authority).

When a litigant reaches a particular “level of vexatiousness,” a court may issue a pre-filing injunction that then “bar[s] the plaintiff from filing any additional actions without first obtaining leave to do so from the district court.”

Newson v. Chase Bank, No. EP-24-cv-00073, 2024 U.S. Dist. LEXIS 121327 (W.D. Tex. July 10, 2024 citing Day v. Allstate Ins. Co., 788 F.2d 1110, 1115 (5th Cir. 1986).

25.              Burke’s pro se status does not give her a “license to harass others, clog the judicial machinery with meritless litigation, and abuse already overloaded court dockets.”

Farguson v. MBank Houston, N.A., 808 F.2d 358, 359 (5th Cir.1986).

As stated by Judge Rosenthal in March when declaring a pro se as a vexatious litigant, “the relaxed standard for interpreting the pleadings of pro se litigants does not allow for repeated meritless litigation.”

Montes v. Dibbs, No. H-23- 1352, 2024 WL 1119419 (S.D. Tex. Mar. 14, 2024).

There is no constitutional right to prosecute frivolous actions, and preclusion orders are appropriate tools for deterring vexatious filings.

Kaminetzky v. Frost Nat’l Bank of Houston, 881 F. Supp. 276, 277–78 (S.D. Tex. 1995).

“Before a district court issues a pre-filing injunction against a pro-se litigant, it must make substantive findings concerning the frivolous or harassing nature of the litigant’s actions based on the number and the content of the litigant’s filings.”

Franklin v. Laughlin, No. SA-10-CV-1027XR, 2011 WL 598489, at *8

(finding pro se plaintiff’s claims in six prior suits to be “patently without merit” because they sought “to litigate the same issues that this Court dismissed in [a prior suit]” and entering a pre-filing injunction pursuant to the All Writs Act)

(citing De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990)).

Repeated attempts to litigate issues conclusively resolved is sufficient evidence of bad faith supporting sanctions.

Matter of Carrol, 850 F.3d at 816.

26.              The Fifth Circuit has repeatedly affirmed the district court’s ability to impose such restrictions again pro se parties, such as Joanna Burke, where monetary sanctions are ineffective in deterring vexatious filings and where the pre-suit injunction is narrowly tailored to protect the courts and innocent parties.

Areizaga v. ADW Corp., No. 3:14-cv-2899-B, 2016 WL 3511788, at *9 (N.D. Tex. June 7, 2016) (citing Thanedar, 352 Fed. App’x at 900); see also Babineaux v. Wells Fargo Bank, N.A., No. 4:23-cv-01563, 2023 WL 9508084 (S.D. Tex. Nov. 29, 2023).

In the last year, the federal district courts of Texas have declared multiple litigants as vexatious under the inherent authority in Section 1915, with similar patterns as Burke.

In Nicholson v. Turner, in recommending dismissal and declaration of Nicholson as a vexatious litigant, Magistrate Judge Jeffrey Cureton stated,

“This case presents one of the most egregious abuses of the judicial system that the undersigned as ever seen.”

Nicholson v. Turner, No. 4:24-cv-00389 [Doc. 57], report and recommendation adopted at Nicholson v. Turner, No. 4:24-cv-00389-O, 2024 U.S. Dist. LEXIS 128479 (N.D. Tex. July 22, 2024).

Nicholson, like Burke, has filed lawsuit after lawsuit in her scheme to delay foreclosure of the property.

In Castaneda v. Frausto-Recio, the Court declared Castaneda a vexatious litigant after “He filed five cases in a two-year time period that have either been dismissed for failure to state a claim or as frivolous under Section 1915(e).”

Castaneda v. Frausto-Recio, No. SA-24-CV-00718, 2024 U.S. Dist. LEXIS 129812 (S.D. Tex. July 23, 2024).

C.                Joanna Burke Qualifies as a Vexatious Litigant.

27.              “In determining whether it should impose a pre-filing injunction…a court must weigh all the relevant circumstances, including the following four factors:

(1) the party’s history of litigation, in particular whether he has filed vexatious, harassing, or duplicative lawsuits;

(2) whether the party had a good faith basis for pursuing the litigation, or simply intended to harass;

(3)   the extent of the burden on the courts and other parties resulting from the party’s filings;

and

(4)  the adequacy of alternative sanctions.”

Baum, 513 F.3d at 189.

i.                    History of Repeated Litigation.

28.              Joanna Burke’s litigation history is strikingly clear; she cannot accept the fact that her default in making payments on her mortgage has resulted in a foreclosure judgment, with the now pending foreclosure of the Property.

In order to continually delay the foreclosure and her eventual eviction from the property, Burke has at all times challenged the relief requested by DBNTC, filed repetitive new lawsuits, sought to disqualify counsel and judges, sought to join entirely unrelated lawsuits involving unrelated plaintiffs, and has otherwise appealed at every turn.

29.              While Burke’s claims plainly have no chance of success, the mere act of filing repetitive claims works to harass Defendants and force them to incur substantial defense costs – costs they have no chance of recovering from Burke even if they were granted by a court.

The issues upon which Burke’s claims are based have already been litigated and decided against her in every forum available.

Accordingly, this Court should enter a pre-filing injunction against Burke, preventing her from filing additional suits against PHH, Ocwen, DBNTC, or its predecessors or successors in interest and the counsel who have represented these parties, or will represent them in regard to Joanna Burke and the Property.

ii.                  No Good Faith Basis.

30.              Burke remains undeterred in her relentless assault against the Defendants. Burke has even failed to heed the warning issued by the Honorable Alfred H. Bennet on August 29, 2022, when he stated,

“Plaintiffs are hereby warned that any additional litigation against Defendants related to the Property or its foreclosure proceedings will be clear and compelling evidence of bad faith, such that the imposition of sanctions and pre-filing injunctions would be just.”

Burke v. Ocwen Loan Servicing, LLC, No. 4:21-cv-2591, 2022 WL 4597975 (S.D. Tex. Aug. 29, 2022), [Doc. 50](emp. added).

31.              The present litigation is the second lawsuit Burke has filed after Judge Bennett issued this warning to Burke (the first being the frivolous litigation in Minnesota district court).

It is clear that Burke lacks any good faith basis for pursuing this lawsuit.

Within her rambling pleadings, it is apparent that all her complaints stem from her loan, the foreclosure judgment and all litigation surrounding the same.

Though the issues have continually been decided against her, Burke’s Complaint (and all its various amendments) illustrates clearly that she has no good faith basis to pursue this suit.

Her goal in filing repeated litigation is to:

(1) continue delay of the foreclosure from the 2018 judgment;

and

(2) harass every mortgagee, mortgage servicer, attorney and/or judge who has taken part in any case against Burke.

Every single prior case has been finally resolved in a manner adverse to Burke.

Indeed, Burke’s track record alone suggests that her litigation is frivolous and simply intended to harass, while she remains in her property for free.

32.              Since the Fifth Circuit held that there was no injustice in allowing that foreclosure to proceed, Burke has stalled the foreclosure through her vexatious ways.

Deutsche Bank v. Burke, 902 F.3d 548 (5th Cir. 2018).

The Fifth Circuit has cautioned borrowers, and their attorneys, against “gaming the system” by filing lawsuits or taking other actions to prolong occupancy of their residence while making little or no payment on their mortgage debt.

See Germain v. U.S. Bank Nat’l Ass’n, 920 F.3d 269, 277-78 (5th Cir. 2019).

Burke’s gamesmanship must be put to an end.

iii.                Burden on Courts and Other Parties.

33.              The burden imposed on the courts and other parties resulting from Burke’s litigiousness is self-evident. Burke has been embroiled in litigation regarding the Property for over thirteen years due to her tactics at attempted re-litigation of already decided issues.

The number of lawsuits, attempted interventions and the sheer volume of pleadings filed within those suits by Burke are indicative of the burden she has placed on the courts and all parties placed in her path of anger.

Simply put, Burke has clogged the state, federal, appellate and bankruptcy court systems with her frivolous filings and, in the process, drains the courts and the parties of valuable resources.

34.              Burke’s burden upon the judiciary and the parties is further exemplified by her pattern of moving to recuse or disqualify the presiding judge(s) and/or all counsel involved in any case and/or by simply including the judges and counsel as defendants in an attempt to force defendants to hire new counsel.

Burke’s motions to disqualify or recuse exemplify the frivolous tactics of Burke and the burden that these tactics take on Defendants, their counsel, and the Court.5

iv.                No Adequate Alternatives.

35.              Burke’s claims have already been dismissed with prejudice on multiple occasions as barred by res judicata. Yet Burke appears to have shown a brazen indifference to these dismissals.

Without an injunction in place to prevent future filings, Burke will continue to file meritless lawsuits that harass PHH and DBNTC, and all attorneys and judges involved in any case

5 Burke has sought to remove Judges and counsel for DBNTC, Ocwen, and Attorney Defendants in the following instances:

In the Second Lawsuit – Burke filed the following: (a) Motion to Dismiss Opposing counsel [Doc. 32], which was struck by the Court [Doc. 33]; (b) Motion to Disqualify Counsel [Doc. 50], denied by the Court [Doc. 51]; (c) Objection to Notice of Appearance and Motion to Dismiss Counsel [Doc. 111 & 114], denied by the Court [Doc. 118];

In the Appeal of the Second Lawsuit (Fifth Circuit Case No. 18-200260 – Burke filed a Motion to Disqualify Opposing Counsel, Hopkins Law PLLC, & Dismiss Appeal, filed October 24, 2018, which was denied by the Court on October 29, 2018;

In the Fourth Lawsuit – Burke filed a Motion to Disqualify Judge David Hittner [Doc. 70], which was denied by the Court [Doc. 71];

In the Appeal of the Fifth Lawsuit – Burke filed (a) a Motion to Disqualify Chief Judge Priscilla Owen, filed July 3, 2021, which was denied by the Court on July 7, 2021; (b) Motion for Sanctions, filed July 8, 2021, in Case No. 19- 20267, which was denied by the Court on August 4, 2021.

related to Burke. No other action is adequate to deter Burke from pursuing other frivolous litigation. Burke’s harassment of Defendants, counsel, and court personnel and the judiciary clearly abuses the litigation process.

Based on Burke’s now 13-year litigation history, she will continue to abuse the court system unless this Court enjoins her from filing further vexatious litigation.

IV. CONCLUSION

Pursuant to the reasons set out herein, PHH requests that the Court grant this Motion and declare Plaintiff Joanna Burke as a Vexatious Litigant, enter an order enjoining Burke from filing any new litigation in any federal court in the United States and the state courts of Texas, without first obtaining the express permission of a district judge within the federal district upon which she attempts to file or with the presiding state administrative judge for any state court of Texas, and for any further relief, at law or in equity, to which PHH shows itself justly entitled.

Respectfully submitted,

By:      /s/ Mark D. Hopkins

Mark D. Hopkins – Attorney in Charge
State Bar No. 00793975
Southern District ID No. 20322

Shelley L. Hopkins
State Bar No. 00793975
Southern District ID No. 926469

HOPKINS LAW, PLLC
2802 Flintrock Trace, Suite B103
Austin, Texas 78738
(512) 600-4320

mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com

Counsel for
PHH Mortgage Corporation

CERTIFICATE OF CONFERENCE

I hereby certify that on the 1st day of August, 2024, my office reached out to Plaintiff by email to inquire as to whether she was opposed to this Motion. As of filing of this Motion, no response was received.

/s/ Mark D. Hopkins

Mark D. Hopkins

CERTIFICATE OF SERVICE

I hereby certify that on the 5th day of August 2024, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF filing system, and served a true and correct copy to the following:

VIA EMAIL

VIA REGULA MAIL VIA CERTIFIED MAIL

Joanna Burke

46 Kingwood Greens Drive
Kingwood, Texas 77339
joanna@2dobermans.com
Pro Se Plaintiff

/s/ Mark D. Hopkins

Mark D. Hopkins