I.                              INTRODUCTION

The Fourteenth Amendment to the United States Constitution provides in part: “No State shall…deprive any person of life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.

In the recent matter of Ronnie Wallace Long[4], the deprivation was 44 years in prison for a crime he did not commit due to suppression of evidence by corrupt officials. In the Burkes near decade long wrongful foreclosure case, they too have been subject to suppression of evidence and left incarcerated in federal court.

The significant difference is the Burkes defeated the Banks’ wrongful foreclosure, not one time, but twice in Texas, only for the circuit court to overturn those cases in violation of the law and relying upon an erie guess. To correct this wrong and collect evidence for their new case(s) in Texas, the Burkes applied to intervene in the Florida case. The lower court denied the Burkes intervention as a right or permissively.

Distressingly, in this circuit panel’s affirmation, an even more egregious  plot to injure the Burkes has transpired. The panel has executed a known system: in Judge Tjoflat’s own words:

“You just unpublish them (opinions)…you just do a little gloss over here, and you do a little gloss over there…”[5]

With these circuit and lower court judges’ statements both archived in print, it is without question, the overall effect of unlawful denial of intervention and access to sealed documents in the Florida case will terminally injure the Burkes.

The elder Burkes will lose the security of their homestead and any shelter and this travesty of justice will occur during a deadly international pandemic. It is effectively a death warrant for the elder and infirm Burkes. See; McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282, 1289 (11th Cir. 2018).

As fragile as it may be to point the blame toward the court(s) for erasing arguments and facts pivotal to their appeal and to which the Burkes now seek relief, it is a necessary requirement, but the Burkes are not alone.[6]

The current situation in which the Burkes find themselves has only been achieved by lies, deception and suppression of evidence in federal courts.

As such, it has resulted in theft of property, financial hardship, emotional distress and an unstoppable decline in the Burkes health, both mental and physical. See; McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282, 1288-89 (11th Cir. 2018) In legal terms, it is unequivocally a denial of liberty, property, due process and justice.

An en banc panel would have the opportunity to correct such a miscarriage of justice and the Burkes now respectfully ask the court to consider the irrefutable facts herein and grant the Burkes petition for en banc in an independent circuit and where a quorum of judges can be formed, as required by law.

II.                           STATEMENT OF THE ISSUES

The Burkes focus on the two questions and succinctly address the specific and erroneous findings in the 3-panel’s opinion, relative to Intervention as a Right and Permissive Intervention. The Burkes maintain the panel’s ‘specifics’ are moot, as presented in Questions I and II. The fraud by the court and impeachable conduct should render the order dismissing the Burkes intervention as void, rather than voidable.

III.                       ARGUMENT

QUESTION I

The Non-Random and 2-Panel Assignments

The US Supreme Court has stated; “the judiciary’s authority…depends in large measure on the public’s willingness to respect and follow its decisions.” Williams-Yulee v. Florida Bar, 575 U.S. 433, 445-446 (2015).

It is therefore a necessity of the judiciary’s continued legitimacy that “justice must satisfy the appearance of justice”—a mandate that is carried into action in the judicial-assignment context by the Due Process Clause. Id. at 446 (quoting Offutt v. United States, 348 U.S. 11, 14 (1954)); see generally Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009).

In turn, “random assignment of cases is essential to the public’s confidence in an impartial judiciary.” E.g., Committee on Judiciary v. McGahn, 391 F. Supp. 3d 116, 119 (D.D.C. 2019).

As stated in the synopsis above, this court may have commenced the Burkes appeal with a random assignment of 3 judges, but would turn into a litany of changes, resulting in a total of 8 judges who have interfered in this appeal and with the exception of part of one order from Judge Martin, grossly erred in orders on motions presented or the courts’ final opinion.[7]

The En Banc Quorum Dilemma

Eight out of twelve active judges have been identified as directly involved in the Burkes specific appeal.

The Chief Judge, William Pryor, is identified as being directly involved in the Burkes judicial complaint against Judge Marra. This complaint and follow up letter by the Burkes was not answered before the appeal opinion was released, affirming the lower courts denial of intervention as a right and permissively.

The Chief Judge makes the Burkes ‘list’ for a second time, as he sat with Judges Jill Pryor and Robert Luck in the fraudulent transfer case of Regions v. Kaplan, and despite Judge Luck’s assault on Kaplan’s attorney in oral argument and confirming the law firm fraudulently inflated fees by hundreds of thousands of dollars, this act was never sanctioned or reported to the Bar or District Attorney.

This fraudulent and bad faith conduct was completely excluded from the two opinions this court issued.[8]  This mirrors the exclusions in the Burkes case as discussed herein.

As such, the 3-panel could not be impartial, should the court grant the Burkes en banc rehearing.

Judges Rosenbaum’s husband Phil Rothschild clerked for Judge Kenneth A. Marra, S.D. Florida, (he worked there over a decade, assisting 3 judges).

It makes common sense she’d be far from ideal sitting en banc and considering a judicial complaint is percolating – while Judge Aileen Mercedes Cannon prepares to take the helm and in turn will allow Judge Marra to resign. This will trigger a dismissal of the Burkes complaint.

In summary, this leaves a single Judge, recently nominated Andrew Brasher. Thus, there is no quorum.

A Question of First Impression and a Formal Request to Transfer Circuit

The Burkes have spent considerable time researching published cases which could help with this quorum dilemma. The only viable situation in this unusual appeal is the case be transferred to another circuit, excluding the Court of Appeals for the Fifth Circuit.

The Burkes reach this conclusion by relying upon the published opinion of Bolin v. Story, 225 F.3d 1234 (11th Cir. 2000). In Bolin, this court conceded (regarding 3-Panel assignment);

“We are faced with a similar situation in this case. Because only one judge currently serving on this Court was not named as a party, it is impossible to convene a three-judge panel in which none of the judges have a personal interest in this case.”

However, this court did assign a panel;

“Given the similarity of the situation, and the persuasive nature of the Second and Tenth Circuits’ reasoning, we follow both Tapia-Ortiz and Switzer in concluding that the rule of necessity allows at least those judges on this Court who have not been involved in plaintiffs’ prior appeals to hear this appeal.”

In the Burkes appeal, they have not sought to recuse all the judges and/or staff attorneys. On the contrary, this court elected to assign 8 judges during the time the appeal arrived and until the final opinion was released on November 2, 2020. For this reason, these judges ‘have a personal interest in this case’.[9]

The Burkes also reviewed the Fifth Circuit’s much publicized en banc case, Comer v. Murphy Oil USA, 607 F.3d 1049 (5th Cir. 2010), wherein they elected to dismiss the appeal when a quorum could not be achieved. This meant the appellant’s right of appeal were in effect, removed as they were unable to petition the U.S. Supreme Court and now with a judgment which could not be appealed, due to the quorum rules in place at the time (now amended).

In that opinion, the circuit court considered and rejected several options before coming to its decision.

This petition falls squarely between the Eleventh Circuit’s Story appeal and the Fifth Circuit’s Comer appeal. The Burkes are pro se, and most certainly no experts in en banc rules. It would appear that transfer to an independent circuit as discussed in Story, would be the most judicial solution.

QUESTION II

Impeachable Conduct by Judge Kenneth A. Marra, S.D. Fl.

As history authenticates, three federal judges from Florida have been impeached. Two judges from the Southern District were removed from judicial office, namely Alcee Hastings and Halsted Ritter. In Fifth Circuit territory, Thomas Porteous of Louisiana and Samuel Kent were impeached. Kent resigned and Porteous was removed from judicial office.

In Porteous, Judge Dennis wrote a blistering and lengthy dissent.[10] See; summary extract;

“A careful and judicious analysis of the evidence in the present case fails to demonstrate that Judge Porteous committed possible treason, bribery, or a high crime or misdemeanor.”

As documented, Judge Dennis’s objections were overruled and Porteous removed from office. This feathers into the impeachable conduct by Judge Marra. The Federal Judicial Center[11] confirms former judges Ritter and Porteous were impeached for crimes including perjury – the same crime committed by Judge Marra.

For the reasons discussed below, this is wholly sufficient to reverse this case and assign a new judge, [and magistrate], if the lower court case has not settled by then and/or Judge Cannon installed.

Bad Faith Conduct by Counsel: Perjury, Collusion, and Conspiracy

The lawyers representing Ocwen and the CFPB submitted perjurious motions and briefs in bad faith. So far, the Burkes have initiated four Bar complaints filed against the most active and senior lawyers representing Ocwen.

These unethical lawyers colluded and willfully conspired together along with the court to maliciously and unlawfully deny the Burkes access to court documents. This, despite the Greens, homeowners involved in a civil dispute with Ocwen, recovering sealed files from Judge Marra’s court for their own Ocwen case in S.D. Texas.

In fact, counsel for the Greens even documented in court filings they provided Ocwen’s counsel in Texas direct contact information for the Ocwen lawyers[12] in the Florida action after the judge ruled in favor of the Greens recovery and ordered that Ocwen provide the said documents on a timely basis.

These details were clearly known by the parties in the Florida case, yet at no time did Ocwen or their counsel disclose the Greens case to the Burkes directly, or in court filings. Instead they falsely and knowingly maintained a frivolous argument and did so in bad faith – while continually lying in sworn statements to the court – vexatiously stating the Burkes could not recover documents for their private action in Texas.

The CFPB also knew these facts and are complicit. Both CFPB and Ocwen continued to provide false statements under oath in this appeal. Alarmingly, despite the Burkes extensive discussion in their briefing on this topic, the 3-panel once again excluded any mention of the perjury, the Greens case in Texas, the collusion and conspiracy and the lawyers bad faith in the glossed and unpublished opinion.

INTERVENTION AS A RIGHT

The Panel is Guilty of a Manifest Error in Excluding Judge Kenneth A. Marra’s Codicil, Which Irrefutably Confirms in Writing He Knowingly Withheld Evidence from the Burkes and as Such Committed Perjury.

It is difficult to discern why the panel found justifiable reason to exclude any reference to Doc. 411, which proved beyond a reasonable doubt the unlawful withholding of evidence and perjury by the Judge’s own words in the codicil;

“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).”

-Signed by Judge Kenneth A Marra, United States District Judge, July 3, 2019.

Although vague, it would appear the panel claim the Burkes raised the matter ‘for the first time’ and hence could discount it entirely. That assertion is rebuffed herein. In any event, the seriousness of the allegations by the Burkes (impeachable conduct) warranted mandatory inclusion and discussion of this codicil in the panel’s opinion, when it includes fraud by the court.

However, by its complete absence, it only illuminated the fact that the panel’s exclusion is not permitted in law. It is a manifest error which commands reversal. In this petition, the Burkes clearly show they are entitled to both Intervention as a right and also permissively.

The evidence – newly discovered and presented by the Burkes in this appeal – wholly supports their claims that the Judge, the opposing parties and respective counsel therein all conspired to withhold evidence from the Burkes.

This conclusion is based on undisputed facts. Namely the Greens, who recovered evidence and sealed documents from the same court, the same case and from the same parties.

Relying on this courts recent decision in Eldredge v. Edcare Mgmt., Inc., No. 17-14821, at *13-14 (11th Cir. Mar. 19, 2019), as cited in part below, the conduct of the judge and the lawyers here is equally vexatious conduct wherein they obstructed the Burkes and by doing so, withheld critical documents which the Burkes had timely requested for their ongoing Texas litigation. The conduct is so egregious it amounts to bad faith.

The Panel Erred When it Stated the Burkes Were Untimely

“The Burkes do not explain why they could not have moved to intervene before the judgment of foreclosure in their Texas case, which commenced in 2011.”

The panel’s question is peculiar. The Burkes had won their case against Deutsche Bank in 2015 and for the second time in 2017 at the lower court. As such, why would the Burkes need to intervene before the Fifth Circuit’s erroneous judgment in law? Clearly this is error.

“The Burkes state conclusorily that they “could not have intervened any earlier…”

The Panel has missed the point and misinterpreted the facts and laws. In Riddle, she contended that the original lender, Bank of America, was vicariously liable for its servicer’s violation. The Fifth Circuit affirmed the dismissal of the claims against Bank of America in part because it held that…

“Bank of America, as a matter of law, is not vicariously liable for the alleged RESPA violations of its servicers.”

Christiana Trust v. Riddle, 2018 U.S. App. LEXIS 36217, *7 (5th Cir. Dec. 21, 2018).

This applies in the Burkes case. They could not hold Deutsche Bank accountable after the Riddle opinion…only Ocwen. And obviously, since the Burkes defeated Deutsche Bank twice in the lower court, only a reversal by the 5th Cir. would necessitate further litigation by the Burkes.

Conclusory it’s not. Riddle is binding precedent[13], according to the Fifth Circuit and this court has followed similar lines in the affirmation of a $3.5m award, including RESPA violations by the mortgage servicer in McGinnis v. Am. Home Mortg. Servicing, Inc., 901 F.3d 1282, 1289-91 (11th Cir. 2018).

The Panel Erred When Asserting the Burkes Made Arguments Central to their Intervention “For the First Time on Reconsideration”.

This is utterly false. First, a review of Doc. 237, the Burkes reply to the Opposing Parties Joint Opposition to Motion to Intervene, pages 13 and 14, goes into great detail regarding the intervention timeline. The Burkes motion was timely.

Second, the panel minimalized the delay by Judge Marra and the courts’ failure to address the Burkes motion to intervene and memorandum, which had been percolating for nearly 6 months at the time the Burkes wrote their letter to the court (May 15, 2019, Doc. 359). As discussed herein, the courts’ delay is extremely applicable to the Burkes arguments.

Third, the panel argues the Burkes could and did commence litigation directly against Ocwen (in Texas). While admitted as true, in the interim the Burkes case was dismissed in the lower court in S.D. Texas (March 19, 2019).[14]

The courts issued order was released May 30, 2019 (Doc. 375). The court was made aware of this fact in the letter to the court two weeks before, on May 15, 2019 (Doc.359).

As such, the only remedies available to the Burkes after they exhausted the lower court by filing a motion to reinstate (which was denied on April 16, 2019) was to appeal in Texas (as filed April 18, 2019) and this only increased the Burkes reliance on the Intervention in Florida.

And not only for recovery of documents from the Florida case, but also when considering application of the law; res judicata, statutes of limitations and other legal issues may result from the pending Fifth Circuit opinion.

Judge Marra’s delay meant that the Burkes Texas litigation against Ocwen was effectively at an end Intervention as a right was essential to the Burkes and in conformance with Salvors. (“Intervention in the original action is also generally the proper mechanism for a nonparty to seek relief from an existing judgment.”). The Burkes provided case status in Texas and information in their letter to the court.

The Homestead is an Interest Per Rule 24 and the Burkes Amply Meet the Standard Required for Intervention.

The panel then attempts to quash the Burkes ‘homestead is an interest’ as a legitimate reason to intervene as a right; for failure to expand their argument in their motion to intervene and reply brief,[15] despite the motion to intervene and memorandum, in totality, focusing completely on the Burkes wrongful foreclosure, their homestead, including their personal assessment of the unconstitutional CFPB and $3 billion admonished Ocwen and discussing why intervention is essential.

The panel’s decision also splits with other circuits: See; Pennsylvania v. President U.S., 888 F.3d 52 (3d Cir. 2018). Furthermore, reviewing the opinion itself, this finding is contradicted later by the panels own words:

“The Burkes share the same ultimate objective [as CFPB] — “to protect homeowners in ‘distress’ nationwide.”” (emphasis added).

Title X of the Dodd-Frank Act created the Consumer Financial Protection Bureau (CFPB). Clearly, if the Burkes are classified as the type of consumer e.g. homeowners, covered by the consumer laws such as RESPA, and which the CFPB oversees, that itself is confirmation of “a legally significant and protectable interest” as it has become a statute protected and governed by law.

The Burkes cite in their original motion to intervene and memorandum, their case in Texas which plainly indicated a judgment of foreclosure had been entered and this meets the impairment standard, which is defined as; “ there must be a tangible threat to the applicant’s legal interest.” (see Pennsylvania).

Furthermore, in Pennsylvania, the court opined;

“Because our focus is on the “practical consequences” of the litigation, we “may consider any significant legal effect on the applicant’s interest,” including a decision’s stare decisis effect or a proposed remedy’s impact on the applicant for intervention.”

Thus, the Burkes, facing the same potential restrictions (stare decisis), it should require no further justification for the purposes of intervention as a right. A homestead is sacrosanct. This courts determination is both obtuse and inadmissible in law.

Nevertheless, the panel assessed the CFPB representation as being adequate: This can easily be rebuffed. In addition to Pennsylvania, the Burkes initial motion and memorandum is testament to the evidence identified by the Burkes:

(a) the CFPB were approached by the Burkes before intervention and they were repelled;

(b) the CFPB aligned with Ocwen against the homeowners intervention;

(c) the CFPB has endorsed Altisource be excluded from the civil action despite Ocwen’s reliance on the totally unreliable[16] accounting software called RealServicing it rents from Erbey’s Altisource[17] (alter ego of Ocwen) and as such the Burkes sought to add Altisource as a party upon intervention;

(d) CFPB’s record of financial compensation for homeowners’ true injury and financial loss in the past has been wholly inadequate. The Burkes sought to intervene to ensure, as plaintiffs, they would be compensated financially in full for their injuries;

(e) The former Assistant Director and Head of the Enforcement Office of the CFPB, Tony Alexis switched to opposing counsel (where Alexis is the Head of Goodwin Procter’s Consumer Financial Services Enforcement Practice) and never removed (CIP).

The Burkes appealed to this court in motions where Alexis was listed as counsel for the CFPB. Shockingly, Judge Branch agreed with the tardy CFPB reply that he holds “an arguable interest in the case” – and as such repealed the actual rules on CIP by her order. However, this erroneous final motion order stands, denying the Burkes relief.

(f) The CFPB is guilty of the charges outlined in the Questions I & II above, including perjury, collusion, conspiracy and bad faith.

All these factors, as documented by the Burkes in their motions prior to judgment and briefs on appeal, certainly go above and beyond the [weak] standard(s) necessary in law. The panel erred.

PERMISSIVE INTERVENTION

It is unnecessary for the Burkes to address the panels’ erroneous reasoning for affirming denial of permissive intervention as;

(a) Many of the panels facts revisit intervention as a right and;

(b) The Burkes meet the requirements for intervention as a right and hence permissive intervention is moot;

(c)  In addition, based on Questions I and II above, the order of the lower court denying intervention is void, as it was issued based on fraud.

IV.                        Conclusion

“I submit that the secret to Justice Scalia’s success was that he always remembered for whom he worked: the American people…No judge has ever been a greater friend of We the People.”  – Scalia and Democracy by Hon. William Pryor, Chief Judge, 11th Circuit.[18]

The Supreme Court has repeatedly held that federal courts possess the inherent power “to vacate [their] own judgment[s] upon proof that a fraud has been perpetrated upon the court.”

Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991) (citing Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238 (1944)).

The Court should grant this petition.

DATED: November 22, 2020

JOANNA BURKE

By      s/ Joanna Burke                                    

JOANNA BURKE

JOHN BURKE

By      s/ John Burke                               

JOHN BURKE

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