Acceleration

Ocwen Altisource and Judge Kenneth Marra Guilty of Non Disclosure in an Abuse against Proposed Intervenor-Plaintiffs in Anti-Consumer Watchdog Case

Perjury in Florida Federal Court by Judge Marra? It is now apparent, Ocwen Altisource could not address the Burkes responses for fear of further self-incrimination.

LIT COMMENTARY

In Florida, there’s been a 3 year case between the anti-consumer government watchdog known as the CFPB against a $3 billion dollar admonished nonbank Ocwen (Altisource) owned and controlled (despite claimed to the contrary) by William C. Erbey.

The intervenors arrived as a new year’s resolution in January 2, 2019 and the court, the CFPB and Ocwen jointly conspired to hide the truth from these would be intervenors in order to deny them access to intervene or to court documents which permissively, is allowed in law.

The case is on appeal and the Burkes final ‘reply brief’ sheds the shocking truth. Watch the short intro video directly below.

Note; There’s actually 3 reply briefs that follow the video with full details; the Master Reply Brief along with child reply briefs for CFPB and Ocwen.

No. 19-13015

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JOANNA BURKE; JOHN BURKE,
Plaintiffs-Appellants,

v.

CFPB, OCWEN LOAN SERVICING, L.L.C.,
Defendants-Appellees.

On Appeal from the United States District Court
For the Southern District of Florida;
District Court Docket No. 9:17-cv-80495-KAM

MASTER REPLY BRIEF [OF APPELLANTS]

Joanna Burke
46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576
John Burke
46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576

Pro Se Appellants

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1 and Federal Rule of Appellate

Procedure 26.1, Appellants hereby furnish a complete list of the following persons who have an interest in the outcome of this case.

US District Judge;

Marra, Kenneth A.

US Magistrate Judge;

Matthewman, William

Consumer Financial Protection Bureau (“CFPB”);

Brenowitz, Stephanie C.

Baez, Tianna Elise
Chin, Shirley T.
Cohen, Adam Harris
Demille-Wagman, Lawrence
Desai, Atur Ravi
Healey, Jean Marie
Kelly, Erin Mary
Nodler, Gregory Ryan
Posner, Michael
Roberson, Amanda Christine
Savage, James Joseph
Singelmann, Jan Edwards
Wilson, Jack Douglas

Office of the Attorney General  &
Office of Financial Regulation;

Fransen, Scott Ray
Granai, Sasha Funk
Pinder, Jennifer Hayes
Winship, Blaine H.

Intervenor Plaintiff;

Burke, Joanna
Burke, John

Fauley, Robynne (TERMINATED)
Subramaniam, Denise (TERMINATED)

 

Ocwen Financial Corporation &
Ocwen Loan Servicing, LLC &
Ocwen Mortgage Servicing, Inc.;

Azuero, Catalina E.
Berry, Bridget Ann
Craven, Laura S.
Hefferon, Thomas M.
Previn, Matthew P.
Protess, Amanda B.
Riffee, Matthew L.
Rose-Smith, Sabrina M.
Sheldon, Matthew S.
Smith, Tierney E.
Stoll, Laura
Tayman, W. Kyle
Wein, Andrew Stuart

Law Firms;
Buckley, LLP (“Buckley”)
Greenberg Traurig (“GTLaw”)
Goodwin Proctor, LLP (“Goodwin”)

Dated; 29th April, 2020;

 

/s/ Joanna Burke
Joanna Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: kajongwe@gmail.com

/s/ John Burke
John Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: alsation123@gmail.com

I.                              TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT. i

I………. TABLE OF CONTENTS. v

II…….. TABLE OF AUTHORITIES. viii

III……. PREAMBLE AND DISCLAIMER. 1

IV…… SUMMARY OF THE ARGUMENT. 2

(a)        The Lower Court Civil Action; CFPB v. Ocwen.. 2

(b)        The Would-Be Texas Intervenors. 3

(c)        The Burkes Provided Specific Reasons for Intervening in the Civil Action.. 4

(d)       The Collusion and Conspiracy between CFPB and Ocwen.. 6

  1. (e) The Burkes Were Denied Intervention by Judge Marra. 7

(f)        The Burkes Asked for Reconsideration and the Bad Faith Escalated.. 7

(g)       The Trust in a Fair and Impartial Decision has Been Eroded by the Modern Day Judge. As Well, The Rogue Lawyering is Allowed to Continue, Unpunished. 7

V…….. ARGUMENT. 8

  1. The Lower Court Should Have Granted the Burkes Intervention Under Civil Rule 24(a)(2). 8
  2. Intervention as of Right per Judge Marra (Denying Intervention, Doc. 375) 8
  3. The Burkes Request to Intervene was Timely. 10
  4. The Intervenors have Direct, Substantial and Legally Protectable Interests that Relates to the Subject of this Action. 11

III.        Disposition of this Action will Impair the Burkes Interests. 13

  1. The Parties Have Not Shown That They Adequately Represent the Burkes interests. 13
  2. Alternatively, the Court Could Have Permitted the Burkes Permissive Intervene Under Civil Rule 24(b)(1)(B). 14
  3. The Burkes Request to Intervene was Timely. 15
  4. The Burkes Motion Did Not Cause Any Delay or Prejudice. 15
  5. The Burkes Do Share Common Questions of Law and Fact. 15
  6. Federal Rules Promote Intervention and Many Parties. 15
  7. Analysis of Judge Marra’s Order Denying Intervention.. 16
  8. Denial of Intervention ‘As of Right’ 16
  9. Denial of Intervention ‘Permissively’ 17
  10. Analysis of Judge Marra’s Order [Reconsideration] 17
  11. Obtaining “Evidence” as a Non-Party Without a Motion to Intervene. 19
  12. The Burkes Intervention Goal is to Become a Plaintiff-Intervenor as of Right. Permissive Intervention was Secondary and Restricted the Last and Least Preferred Option. 21
  13. Judge Marra’s Uncorroborated Codicil Order Denying Reconsideration.. 24

Certificate of Service. 28

Certificate of Compliance. 28

II.                           TABLE OF AUTHORITIES

Page(s)

Cases

Akouri v. State of Florida Dept. of Transp, 408 F.3d 1338 (11th Cir. 2005)………. 4

Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967)…….. 13

Brown v. Advantage Engineering, Inc., 960 F.2d 1013, 1015 (11th Cir. 1992)…. 22

Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014)………………………………… 13

Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019)…………………………………………………………………………………………….. 10

Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996)……………………………… 25

Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001)……………………….. 12

Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (11th Cir. 2008)………………… 9

Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019)………………………………………………………………………….. 19

In re Lease Oil Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009)…………………. 12

Joanna Burke v Ocwen Loan Servicing, LLC, Case 4:18-cv-4544, District Court, Southern District of Texas, Houston Division………………………………………………………. 3

John Doe No. 1 v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001)…………………… 14

Matter of McDaniel, 70 F.3d 841 (5th Cir. 1995)……………………………………….. 12

Mid-Continent Casualty Company v. Basdeo, No. 08-61473-CIV-ZLOCH, at *7 (S.D. Fla. Aug. 7, 2009)……………………………………………………………………………………. 9

Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th Cir. 2005      9

Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006)………………………………….. 23

Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)……………………………… 10

Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962)……………………….. 14

Stone v. First Union Corp., 371 F.3d 1305, 1308 (11th Cir. 2004)…………………… 9

Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)………………… 14

United Mine Workers v. Gibb, 383 U.S. 715, 724 (1966)…………………………….. 15

United States v. Dieter, 429 U.S. 6, 8 (1976)………………………………………………. 9

United States v. LULAC, 793 F.2d 636, 644 (5th Cir. 1986)………………………… 14

Wal–Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 566 (5th Cir. 2016)…………………………………………………………………………………………….. 12

Walters v. Atlanta , 803 F.2d 1135, 1151 n.16 (11th Cir. 1986)…………………….. 10

Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985)……………….. 22

Wilson v. American Motors Corp., 759 F.2d 1568, 1569 (11th Cir. 1985)………. 23

III.    PREAMBLE AND DISCLAIMER

First, a rather lengthy reply brief, including a recap of the case is necessary due to the bad faith conduct of the parties, the appellees in this appeal. While the Burkes wished to keep the reply short and concise, this has proven impractical due to the [mis]conduct as detailed here. The Burkes summary argument truly attempts to focus on the evidence, the facts, the pleadings and the law, but it ends up being sabotaged by a litany of ethical violations which include, but are not by any means exhaustive;

  • Collusion and Conspiracy.
  • Bad Faith Conduct.
  • Dishonesty towards the Tribunal.[1]
  • New evidence showing the Court and the parties must have known about the Greens case in S.D. Tex.

Second, the pro se Burkes have been left searching for the truth, rather than focusing on the appeal, due to apparent known concealment and dishonesty by the lower court.

  • See (iv) above.
  • Judge Marra’s very suspect codicil.

Third, the Burkes conclude the lower court abused its discretion and as a result,  intervention is legally the correct decision in this appeal and based on;

  • The Burkes honest and factual responses.
  • The case law supports intervention.
  • The Burkes pleadings support intervention when you actually read the motions and responses by the Burkes, rather than ignore the majority of the filings (fraudulent conduct) and;
  • Combined with the behavior of the aforementioned, the Burkes have proven beyond a reasonable doubt that the lower court abused its discretion in denying the Burkes motion to intervene as a right, or at a minimum, permissively.

IV.   SUMMARY OF THE ARGUMENT

(a) The Lower Court Civil Action; CFPB v. Ocwen

The Consumer Financial Protection Bureau (“CFPB”) brought an enforcement action against Ocwen (“Ocwen Altisource”) on April 20, 2017 (Doc. 1), seeking an injunction and money damages for mortgage servicing violations on hundreds of thousands of loans. The CFPB’s complaint provides a laundry list of these alleged violations.

(b) The Would-Be Texas Intervenors

Meanwhile, in Texas, two elderly citizens and homeowners, the Burkes, had been forced to litigate for several years against a wrongful foreclosure by named plaintiff Deutsche Bank National Trust Co. The facts are narrated in the Ocwen Altisource child reply brief. As a result of an entry of judgment of foreclosure against the Burkes, (entered on Nov. 29, 2018 by Judge David Hittner of S.D. Tex.), they sued Ocwen in Texas[2] and shortly thereafter, on Dec. 27, 2018, posted a motion to intervene in the CFPB v. Ocwen  case in S.D. Fl. The Burkes motion was officially filed on 4th January, 2019.

The Burkes requested intervention as of right, or permissive intervention (Docs. 220 and 220-1). They also suggested that even restricted permissive intervention could be applied (Doc. 408, p. 13-14, “…or finally with the restricted access to all Court documents in this case, keeping the precedent of the S.D. [Fl.] Court intact (see Horwitz)…”), although the preference was obviously for full rights as a would-be plaintiff-intervenor.

(c)  The Burkes Provided Specific Reasons for Intervening in the Civil Action

The Burkes had studied the Florida case(s) and the parties prior to submission of these documents to the court. This aided in the expedited preparation of the Burkes well developed motion and elaborate supplement in support. They explained their own experience as ‘consumers’[3] and homeowners could assist the parties and perhaps reach an amicable settlement. That said, whilst the CFPB had many complaints and charges against Ocwen, the Burkes request was more focused.

First, the would-be intervenors, the Burkes, were keen to assist the CFPB in the action and when and if applicable, offer testimony[4] about their case and as it applied to the Consumer Protection watchdog’s complaint(s). At the same time, the Burkes would seek to obtain specific documents and/or restitution[5] directly as plaintiff-intervenors.

Second, they also believed it was error that Altisource was not a named defendant, considering the background to the company, the owner and combined with the CFPB’s allegations related to the REALServicing software e.g. that is responsible for so much of the day-to-day input and output of data related to mortgages provided to consumers, and which has been deemed so unreliable, it was banned by at least 20 states. The Burkes would seek to add Altisource to the case.

Third, the Burkes wanted proof that Ocwen Loan Servicing, LLC was the Burkes mortgage servicer.

Fourth, the Burkes would seek full ‘accounting’. The Burkes explained the challenges and non-compliance in recovering that information directly from Ocwen Altisource via a qualified written request.

Fifth, the Burkes could only review some of the underlying case docket on ‘courtlistener.com’[6]. Reviewing the docket online, you’ll note there are currently 4 pages of documents, filings and orders spanning from Doc. 1, the original complaint to Doc. 613, dated April 22, 2020. However, a voluminous number of these filings are motions and orders pertaining to ‘sealing documents’. As such it was extremely difficult for the Burkes to interpret the case without access to view the sealed files, including third-party Altisource’s sealed files.  These issues were clearly stated.

Sixth, the Burkes wanted full restitution for their known injuries as described.

(d) The Collusion and Conspiracy between CFPB and Ocwen

Shockingly, the CFPB penned a joint and crudely templated objection to the Burkes’ motion (Doc. 224, Jan 14, 2019). It would have been sufficiently alarming if this Consumer Protection watchdog had elected to join Ocwen Altisource in this motion. However, not only did they collude and conspire with opposing counsel, they authored the motion. The Consumer Protection watchdog aligned themselves with the very parties they are supposedly opposing, yet clearly offered to write an objection against the very consumers they claim to represent.  Inexcusable.

Since the Burkes arrival at the lower court, the named parties have taken a joint adversarial position against the would-be intervenors. However, they have crossed the threshold of zealous advocacy into joint ‘bad faith’ collusion and conspiracy, which is an extremely serious matter.

1.     (e) The Burkes Were Denied Intervention by Judge Marra

After several months passed and noting the court had not responded to the Burkes request to intervene, on May 14, 2019 the Burkes sent a letter (Doc. 359) asking for a decision. Two weeks later, Judge Marra replied, denying the Burkes permission to intervene in totality (Doc. 375).

(f)   The Burkes Asked for Reconsideration and the Bad Faith Escalated

A motion for reconsideration (Doc. 408) was submitted by the Burkes and objections were filed by the parties. Judge Marra denied the Burkes motion, effectively ending the would-be intervenors application. The Burkes timely filed a notice of appeal.

(g) The Trust in a Fair and Impartial Decision has Been Eroded by the Modern Day Judge. As Well, The Rogue Lawyering is Allowed to Continue, Unpunished.

All of the specific details are discussed herein, but what should be noticed immediately is the bad faith of the parties and the abuse of discretion by the lower court judge, an experienced member of the Florida federal judiciary. It raises serious ethical concerns, attorney misconduct, bad faith conduct and which ultimately questions the integrity of the judge. Protected by shields of immunity or not, they are subject to public inspection. In this case, the aforementioned have forever eroded the peoples’ trust in the legal profession and an independent judiciary.

V.   ARGUMENT

A. The Lower Court Should Have Granted the Burkes Intervention Under Civil Rule 24(a)(2).

Under the Federal Rules of Civil Procedure, a non-party must be allowed to intervene (1) when it has an interest relating to the subject of the action and (2) disposing of the action may practically “impair or impede” that interest, (3) unless the parties “adequately represent” that interest. Fed. R. Civ. P. 24(a)(2). The Burkes, as Intervenors qualified to intervene as of right in this matter as they satisfied all three requirements (and which are individually addressed herein).

B.  Intervention as of Right per Judge Marra (Denying Intervention, Doc. 375)

“To intervene of right under Rule 24(a)(2) [of the Federal Rules of Civil Procedure], a party must establish that (1) his application to intervene is timely[7]; (2) he has an interest relating to the property or transaction which is the subject of the action[8]; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.”  Fox v. Tyson Foods, Inc., 519 F.3d 1298, 1302-03 (11th Cir. 2008) (citation and internal quotation marks omitted); Fed. R. Civ. P. 24(a)(2).  The burden is on the party seeking intervention.[9]  See Stone v. First Union Corp., 371 F.3d 1305, 1308 (11th Cir. 2004).

After the Burkes submitted a motion for reconsideration[10] (Doc. 408), Judge Marra added a very suspect codicil to his original denial of permissive intervention. An ‘abuse of discretion standard’ is applied. It has been discussed further into this master reply brief, under the heading(s); “Analysis of Judge Marra’s Order(s)…”

I.   The Burkes Request to Intervene was Timely.

The motion to intervene was “timely.”[11] Fed. R. Civ. P. 24(a). The Fifth Circuit has noted that Rule 24’s timeliness inquiry “is contextual; absolute measures of timeliness should be ignored.” Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). CFPB brought the action against Ocwen Altisource on April 20, 2017 and it has sluggishly progressed since then. The parties have repeatedly sought stays of this proceeding or argued constantly to a point that the lower court had to warn the parties about their [mis]conduct.

Contrary to the opinion of Judge Marra, the Burkes intervention was timely. The Burkes requested intervening within a month of filing a lawsuit against Ocwen in Texas. Since then, the would-be intervenors have watched the parties and the court be extremely lethargic – to a point where the Burkes had to stir the court by letter and remind them of the Burkes unresolved motion. As stated, the Burkes sought to intervene at the earliest possible moment.  Review of the docket will confirm no trial has taken place since the dismissal of the Burkes motion for reconsideration and filing their appeal. In short, no final judgment in the lower court case has been rendered or entered after 3 years of litigation.

The Burkes themselves could not have intervened any earlier in law as the judgment of foreclosure in their case was by plaintiff Deutsche Bank National Trust Company. (“Deutsche Bank Fraud”). Based on the recent Fifth Circuit decision in Riddle, they had to sue Ocwen Loan Servicing, LLC (“Ocwen’s Note) independently to show a direct and legally protectable interest. The new civil action against Ocwen’s Note was executed immediately after the first Opinion at the Fifth Circuit, in favor of Deutsche Bank Fraud.  It was removed by Ocwen’s Note to federal court in early December, 2018. By the end of the month, the Burkes had posted their motion to intervene to Florida. Hence, the motion could not have been submitted any sooner. The respondents object to the Burkes timeliness but their arguments are beyond insipid. The Burkes have responded to those  erroneous claims. The Burkes meet the legal standard(s) pertaining to an I above.

II.  The Intervenors have Direct, Substantial and Legally Protectable Interests that Relates to the Subject of this Action.

The Fifth Circuit has said before that courts may not define the requisite interest for intervention purposes “too narrowly.” Ford v. City of Huntsville, 242 F.3d 235, 240 (5th Cir. 2001). The Burkes hold a “direct, substantial, legally protectable interest.” In re Lease Oil Antitrust Litig., 570 F.3d 244, 250 (5th Cir. 2009) (quotation omitted). And those interests are related to “the subject of the action” Fed. R. Civ. P. 24(a). — which are concisely summarized in the Consumer Protection Bureau’s (“CFPB”) own appeal brief in opposition (p. 15-17, Mar. 11, 2020) as well as their original complaint (‘the counts’ per Doc. 1, Apr. 20, 2017).

Even if the Burkes did not have an enforceable legal entitlement, an interest;

“is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim.” Wal–Mart Stores, Inc. v. Tex. Alcoholic Beverage Comm’n, 834 F.3d 562, 566 (5th Cir. 2016) (quotation omitted).

The Burkes meet both criteria. The Burkes do have an enforceable legal entitlement, a homestead which is deemed sacrosanct in law. (See; Matter of McDaniel, 70 F.3d 841 (5th Cir. 1995) – Stating that “[i]n Texas, homestead rights are sacrosanct”). There are also laws which confirm the Burkes home is very worthy of protection, both state, (including Article XVI, Section 50 of the Texas Constitution; As amended November 5, 2013: (a) The homestead of a family, or of a single adult person, shall be, and is hereby protected from forced sale…) and federal laws. Indeed, shortly after the financial crisis, the government created the CFPB for that purpose, consumer protection, and even branded the watchdog agency the Consumer Financial Protection Bureau. (The Burkes discuss the reach of the CFPB’s authority later). The direct and enforceable legal entitlement is drastic for the Burkes. They are currently sitting under a Texas judgment – ordering foreclosure of their homestead  – and Ocwen (“Ocwen Altisource”) is the alleged mortgage servicer who are deceptive as  (i) they refuse to confirm they are the legal mortgage servicer and; (ii) are providing false and erroneous accounting records. Simply stated, the Burkes meet the legal standard(s) pertaining to an II above.

III.  Disposition of this Action will Impair the Burkes Interests

The Burkes must also show “that disposing of the action may as a practical matter impair or impede” their interests. Fed. R. Civ. P. 24(a)(2). That does not require a would-be intervenor to demonstrate that a judgment in the action would have binding effect on the would-be intervenor. All that matters is whether the judgment “may” have a “practical” impact on the would-be intervenor’s interest. See Atlantis Dev. Corp. v. United States, 379 F.2d 818, 828-29 (5th Cir. 1967). The Burkes discuss this in-depth below and if determined necessary, the child reply brief(s).  The Burkes meet the legal standard(s) pertaining to an III above.

IV.   The Parties Have Not Shown That They Adequately Represent the Burkes interests.

Next on the list of requirements is whether the existing parties adequately represent the Burkes interests. The burden of proof is “not a substantial one.” Brumfield v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014). Then-Judge Blackmun summarized three scenarios when inadequate representation obviously exists—namely, when the party sought to be replaced (1) may be colluding with the opposing party, (2) takes a position adverse to the would-be intervenor, or (3) fails to diligently pursue the would-be intervenor’s interests. Stadin v. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962). “‘The potential intervener need only show that the representation may be inadequate.’” John Doe No. 1 v. Glickman, 256 F.3d 371, 380 (5th Cir. 2001) (quoting Trbovich v. United Mine Workers, 404 U.S. 528, 538 n.10 (1972)) (emphasis added). Here, there is no question that the CFPB are inadequately representing the Burkes interests, including colluding with Ocwen Altisource. These reasons are addressed below and if determined necessary in the child reply brief(s).

C.  Alternatively, the Court Could Have Permitted the Burkes Permissive Intervene Under Civil Rule 24(b)(1)(B).

If the Court denies the Burkes intervention as of right — which it did — it could have granted permissive intervention because the Burkes position confirmed they share a common question of law or fact. See Fed. R. Civ. P. 24(b)(1)(B) (“On timely motion, the court may permit anyone to intervene who . . . (B) has a claim or defense that share with the main action a common question of law or fact.”).

To obtain permissive intervention under Rule 24, the Burkes needed to demonstrate that: (1) the motion to intervene is timely; (2) its claim or defense has a question of law or fact in common with the existing action; and (3) intervention will not delay or prejudice adjudication of the existing parties’ rights. Id.; see United States v. LULAC, 793 F.2d 636, 644 (5th Cir. 1986) (“Although the court erred in granting intervention as of right, it might have granted permissive intervention under Rule 24(b) because the intervenors raise common questions of law and fact.”).

The Burkes satisfied each of these factors, but Judge Marra denied permissive intervention or any ‘diluted or restricted’ alternatives which he could have permitted (discussed below).

1. The Burkes Request to Intervene was Timely.

First, as stated above, the Burkes motion is timely.

2. The Burkes Motion Did Not Cause Any Delay or Prejudice.

Second, the Motion did not cause any delay or prejudice to the existing parties’ rights to litigate the case.

3. The Burkes Do Share Common Questions of Law and Fact.

Third, the would-be Intervenors share common questions of law and fact with the main action as stated above and detailed herein.

D.  Federal Rules Promote Intervention and Many Parties.

“Under the Rules, the impulse is toward entertaining the broadest possible scope of action consistent with fairness to the parties; joinder of claims, parties and remedies is strongly encouraged.” United Mine Workers v. Gibb, 383 U.S. 715, 724 (1966). See Goldberg, The Influence of Procedural Rules on Federal Jurisdiction, 28 STAN. L. REV. 395, 416-24, 469-76 (1976); Jones, Problems and Prospects of Participation in Affirmative Action Litigation: A Role for lntervenors, 13 U.C.D. L. REv. 221, 223-24 (1980).  Moreover, the federal rules were drafted  and  are  construed  to allow  many  parties  into  the  litigation,  thereby  reducing  the  plaintiffs control. The rules governing intervention, joinder, indispensable parties, and class actions all circumscribe either the plaintiffs’ ability to join parties or, as in this case, to keep parties out of the litigation.

E.  Analysis of Judge Marra’s Order Denying Intervention

In the preceding pages, the Burkes have summarized the standards required for intervention. Now the Burkes analyze United States District Judge Kenneth A. Marra’s orders denying the Burkes motion(s) and effectively dismissing their application to intervene in the lower court case.

A.   Denial of Intervention ‘As of Right’

Judge Marra denied the Burkes intervention as of right (Doc. 375, p. 4) in one short, sweeping paragraph;

“Here, the Court concludes that the proposed Intervenors do not meet the requirements for intervention as of right because they have failed to establish that their interests, if any, would be impaired by the disposition of this action, particularly since the proposed Intervenors could raise or could have raised their concerns either in their individual foreclosure lawsuit or the recent litigation they initiated in Texas federal court. Moreover, their interests, if any, would be adequately represented by CFPB, who seeks to hold Ocwen accountable for allegedly wrongfully foreclosing upon property based upon inadequate information.

B.   Denial of Intervention ‘Permissively’

Judge Marra also concluded the Burkes should be denied permissive intervention for the following reasons;

“In the Motion to Intervene, the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention. Even if there were some overlap between CFPB’s case and the claims of the proposed Intervenors, the present parties in this action would suffer prejudice and undue delay if the proposed Intervenors were permitted to intervene in this case.

Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue, and the scope of discovery, which had already been underway for over a year when the Motion to Intervene was filed, would necessarily expand to include those new issues. Therefore, the Court in its discretion finds that permissive intervention is not warranted.”

F.   Analysis of Judge Marra’s Order [Reconsideration]

The Burkes then asked Judge Marra to reconsider. The courts fleeting order follows (Doc. 411, p. 3);

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).”

Judge Marra’s Implausible Statement: First, the Burkes address the proclamation that the ‘intervention is not permitted for the purposes of seeking or obtaining evidence for other litigation’ and which refers to p. 4 of the Burkes motion for reconsideration (wherein the Burkes detail reasons for their request to intervene, included obtaining documentation to assist with their ongoing and active litigation in Texas against Ocwen’s Note).

The Burkes hold Judge Marra’s assertion to be an abuse of discretion[12], and clear error in law.

First, Judge Marra does not even cite a single case, nor reference any supporting case law[13]. As the Burkes shall demonstrate, the case law does not support this improvident declaration.

G.   Obtaining “Evidence” as a Non-Party Without a Motion to Intervene

Recently, and most certainly after Doc. 411 was published by Judge Marra, the pro se Burkes were researching cases and citations which would help prove their arguments in this appeal. The results now raise a serious question as to the truth of the uncorroborated statement in law by United States District Judge Kenneth A. Marra (Doc. 411, p.3).

In the Texas case of Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019)[14], which will be referenced as “Greens” for short, is one of a series of actual cases by the Greens, who are Texas homeowners, at the S.D. Tex. court against Ocwen.

A summary of the Greens own foreclosure case(s) can be summarized by U.S. District Judge Nancy Atlas’s order affirming Bankruptcy Judge Marvin Isgur’s order, and allowing the Greens to retain access to the following ‘discovery’ documents as evidence for their own case against Ocwen. The documents which the Greens actually obtained and Ocwen attempted to quash[15], would be from the lower court case in Florida. That is correct, these are documents (currently under seal at S.D. Tex.), from the CFPB v. Ocwen case before Judge Marra and which is now on appeal before this court. Below is an extract of the Joint Case Discovery and Management Plan, (Doc. 9, p. 5, Case #18-03351, S.D. Tex. (Bankruptcy)). Note; The CFPB were not a party, nor did they object to release of the lower court case documents identified below, in the Greens case(s):

1) Plaintiffs seek a copy of all transcripts (deposition, hearing, or witness statements) that were specifically referenced in the complaint filed by the Consumer Financial Protection Bureau (“CFPB”) on April 20, 2017, against Ocwen Loan Servicing, Inc. in Case No. 9:17 CV-80495 in the Southern District of Florida, West Palm Beach Division (the “Complaint”). The CFPB specifically referenced in the Complaint that in June, 2016, Ocwen’s Head of Bankruptcy testified, “that more than 22,000 borrowers in bankruptcy were impacted by Ocwen’s failure to conduct a timely escrow analysis and that Ocwen is currently attempting to remediate these borrowers.”

A copy of the CFPB Complaint, Docket sheet, and contact information for Ocwen’s counsel in the CFPB litigation has been provided to Mr. Curran, Ocwen’s counsel in this adversary proceeding.”

H.  The Burkes Intervention Goal is to Become a Plaintiff-Intervenor as of Right. Permissive Intervention was Secondary and Restricted the Last and Least Preferred Option.

The Burkes admit due to their pro se education of federal laws, they were completely oblivious to the fact you could request documents and evidence from other cases without intervention, even if the Greens were entering[16] or conducting ‘discovery’ in their case. The Burkes relied on the more legally known and accepted path – intervention – and not just for permissive intervention as discussed in this section regarding the cited cases and which question Judge Marra’s order, but also to become a plaintiff. As such, formal intervention in the lower court case would still be necessary to achieve that end goal.

Based on historical cases from this very circuit, this court should also find that Judge Marra’s statements conflict with the law. The Burkes now present the facts and decision from  Brown v. Advantage Engineering, Inc., 960 F.2d 1013, 1015 (11th Cir. 1992) which could be regarded as a mirror of the Burkes facts, case and arguments in this appeal;

“On February 7, 1991, Westlands filed a Federal Rule of Civil Procedure 24(b) motion for permissive intervention in the Georgia action for the purpose of unsealing the record. Westlands explained that the requested documents reportedly contained admissions by Amoco Chemical regarding Torlon that could prove helpful in Westlands’ action against Amoco Chemical and ARPCO in California. Amoco Chemical principally objected on the grounds that no pending action existed in which Westlands could intervene, and that the motion to intervene was untimely because it was filed more than one year after Amoco Chemical’s summary judgment was denied.

The district court denied Westlands’ motion to intervene but this court stated; “We squarely addressed the central issue presented in this case in Wilson v. American Motors Corp., 759 F.2d 1568 (11th Cir. 1985).

The facts in Wilson are strikingly similar to the case at hand… The only distinction of note between Wilson and the instant case is that in Wilson the record was sealed after a jury verdict and here the record was sealed prior to trial, but it is a distinction without a difference.

Once a matter is brought before a court for resolution, it is no longer solely the parties’ case, but also the public’s case. Absent a showing of extraordinary circumstances set forth by the district court in the record consistent with Wilson, the court file must remain accessible to the public.

A review of these cases and the resulting opinions, which conclude the lower court judge(s) abused his/their discretion (in both cases cited, Wilson and Westlands), what is abundantly evident is Judge Marra’s statement is factually and legally incorrect, in error and based on the evidence, untruthful.[17]

Judge Marra’s orders denying intervention did not address sealing of records, but the opposing parties briefs do. The Burkes discuss that further in the CFPB child reply brief, but the key issue here is not sealing or unsealing. Rather, the focus is on the erroneous statement by Judge Marra stating the Burkes are not allowed to intervene to access evidence[18] for their Ocwen’s Note civil action in Texas.[19]

Not only do parties regularly intervene for evidence in their ‘other’ civil actions, the Greens case proves that litigants can obtain discovery from related cases directly from their civil actions.  In this case, the Burkes chose the path of intervention in this case as they sought to join the lawsuit as an intervenor-plaintiff in the case (‘intervention as of right’) and/or permissive intervention. Permissively, they looked to seek or recover evidence for their ongoing Ocwen action in Texas. Judge Marra denied the Burkes both and this is clear error in law and a manifest injustice.

I.   Judge Marra’s Uncorroborated Codicil Order Denying Reconsideration

“..the Court relied on the length of time discovery had been underway when the Motion to Intervene (ECF No. 220) was filed, not the length of time between the commencement of discovery and the Court’s ruling on the motion to intervene. (See ECF No. 375 at 5).”

Judge Marra added the above codicil, effectively changing his original Order but not changing his decision in denying permissive intervention – after the Burkes submitted their motion for reconsideration. Much has been stated about ‘the length of time discovery had been underway’ when the Burkes timely filed their motion and a weak attempt to deflect from the fact that the court had to be sent a reminder about the Burkes’ motion to intervene, which sat percolating from January 4, 2019 until the Burkes letter prodding the court to wake up (Doc. 359, May 15, 2019) and the Order was issued denying intervention on  May 30, 2019 (Doc.375).

The CFPB have made this a key argument in their response as to why permissive intervention should be denied and their colluding partners, Ocwen (that’s right, opposing counsel), mirror the arguments, with one key exception.

What stands out here is the fact that despite a bucket-list of case citations by both colluding partners in their briefs, not one believable[20] case is cited relative to the length of time discovery had been underway would prejudice them and/or the court. Nothing. And as you can see from Judge Marra’s codicil, he’s not cited any case law either. Zero. Zilch. The Burkes have presented appellate case law[21] stating unless a judgment is entered, then an intervention should be deemed timely, unless it’s on the eve of a trial or similar. No such event was forthcoming here.

“In the Motion to Intervene, the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention. Even if there were some overlap between CFPB’s case and the claims of the proposed Intervenors, the present parties in this action would suffer prejudice and undue delay if the proposed Intervenors were permitted to intervene in this case.

Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue, and the scope of discovery, which had already been underway for over a year when the Motion to Intervene was filed, would necessarily expand to include those new issues. Therefore, the Court in its discretion finds that permissive intervention is not warranted.”

The Burkes return to the permissive intervention order, part II. Liberally construing the short two paragraphs by Judge Marra denying permissive intervention and forensically (textually) analyzing the statements therein, the Burkes interpretation would summarize the conclusions of the judge as; (i) An obvious admission the Burkes had sufficiently pleaded they were entitled to permissive intervention[22]: “Even if there were some overlap[23] between CFPB’s case and the claims of the proposed Intervenors” and; (ii) that in actual fact the Burkes would satisfy the test for intervention as a right as the judge confirms in his statement the CFPB did not adequately represent the Burkes. For example, if intervention had been granted, the Burkes wished to add Altisource as a party because they rent the REALServicing software to Ocwen and that software is used by Ocwen for “accounting” and production of statements which they rely upon for collection of the loan debt and/or rent payments and associated costs and fees from mortgage account holders, e.g. homeowners. The Burkes contested the accounting and this was raised by the Burkes. Despite the CFPB complaint alleging miscalculations and errors in accounting, it did not seek joinder of Altisource, who claim proprietary ownership of the software which it is claimed by the CFPB, does not operate correctly nor accurately. In other words, the programming software and algorithms are most likely responsible and yet Altisource are not a party[24]: “Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue…” and “would necessarily expand to include those new issues.”. When a current plaintiff is not litigating to the full extent of the law, intervenors are welcomed rather than shunned. The CFPB are failing their consumers. Altisource should be a named defendant as the Burkes sought to demand.

  • END –

DATED: April 29, 2020             

[1] See ABA; Candor towards the tribunal

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_3_3_candor_toward_the_tribunal/comment_on_rule_3_3/

[2] Joanna Burke v Ocwen Loan Servicing, LLC, Case 4:18-cv-4544, District Court, Southern District of Texas, Houston Division.

[3] Doc 220, p. 27; “Approving the lntervenor Application will mean the court obtains the views and the help of the Applicants, who are consumers, homeowners and can be a representative voice of the people that are currently in a similar situation.”

[4] Akouri v. State of Florida Dept. of Transp, 408 F.3d 1338 (11th Cir. 2005) – Holding a “plaintiff’s testimony, standing alone, can support an award of compensatory damages for emotional distress based on a constitutional violation”.

[5] Doc. 220, p.4 THE APPLICANTS MEET THE STANDARDS OF RULE 24;  “ln relation to this motion, the Applicants can prove quantifiable monetary damages and imminent ‘injury in fact’.”

[6] See https://www.courtlistener.com/docket/5783758/consumer-financial-protection-bureau-v-ocwen-financial-corporation-inc/

[7] See Doc. 237 ; p. 16(4) In part; Allowance and consideration should be given to the fact that the Applicants are pro se and only discovered the availability of filing as an Intervenor in December 20l8. Until this time, they were completely unaware of its legal existence…

[8] Doc. 237, Exhibit B; p. 17-20, The Applicants Possess Incontestable Interest in This Action, their homestead and which cited; “This legally protected interest is defined as “something more than an economic interest.” Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th Cir. 2005) (quotation omitted). It is “one which the substantive law recognizes as belonging to or being owned by the applicant.” Id. In sum, a legally protectable interest is an interest that derives from a legal right, and the Eleventh Circuit has in no uncertain terms excluded from this definition “purely economic” interests. Id. (footnote omitted).” – Mid-Continent Casualty Company v. Basdeo, No. 08-61473-CIV-ZLOCH, at *7 (S.D. Fla. Aug. 7, 2009).

[9] The lower court excluded the important part of this legal standard as stated in the Stone opinion; “Interveners need only show that the current plaintiff’s representation “may be inadequate,” however, and the burden for making such a showing is “minimal.”” Stone v. First Union Corp., 371 F.3d 1305, 1311 (11th Cir. 2004).

[10] Judicial tradition has strongly affirmed that a court in a civil case should be able to correct a mistake in response to a timely motion for reconsideration, thereby avoiding an unnecessary appeal. It has been recognized by the highest court that Judges make mistakes and thus “the wisdom of giving district courts the opportunity promptly to correct their own alleged errors.” United States v. Dieter, 429 U.S. 6, 8 (1976).

[11] “We review a court’s determination of timeliness for intervention for abuse of discretion. Walters v. Atlanta , 803 F.2d 1135, 1151 n.16 (11th Cir. 1986).” Comm’r, Ala. Dep’t of Corr. v. Advance Local Media, LLC, 918 F.3d 1161, 1170 (11th Cir. 2019).

[12] Definition per legal dictionary;

https://legal-dictionary.thefreedictionary.com/Abuse+of+Discretion ; (in part)

Abuse of Discretion; A failure to take into proper consideration the facts and law relating to a particular matter; an arbitrary or unreasonable departure from precedent and settled judicial custom. Where a trial court must exercise discretion in deciding a question, it must do so in a way that is not clearly against logic and the evidence. An improvident exercise of discretion is an error of law and grounds for reversing a decision on appeal.

[13] “It is well settled that a trial court abuses its discretion if, in making the discretionary call, it misapplies the law”, – Bal Harbour Club, Inc. v. AVA Development, Inc. (In re Bal Harbour Club, Inc.), 316 F.3d 1192 (11th Cir. 2003), [citing  In re Celotex Corp., 227 F.3d 1336, 1338 (11th Cir. 2000).”It is well settled that a trial court abuses its discretion if, in making the discretionary call, it misapplies the law.”].

[14] The order In Re Green was published on August 26th, 2019 e.g. After Judge Marra had disposed of the Burkes motion to intervene and reconsideration and after the Burkes Notice of Appeal (Doc. 414, Aug. 2, 2019).

[15] The Burkes wish to highlight that Ocwen aggressively litigates every case, even when the law does not support their arguments. For example, In Re Green, they attempted to convince Judge Atlas that an interlocutory appeal was warranted, even when the law does not support that claim:

“Ocwen’s subjective fears that the Greens or their counsel will violate Judge Isgur’s orders does not render those orders effectively unreviewable, and it is not a basis for an immediate appeal under the collateral order doctrine.” In re Green, Bankruptcy No. 12-38016 (13), at *11 (S.D. Tex. Aug. 26, 2019).

Furthermore, as the Burkes will prove, in this case Ocwen Altisource blatantly ignored many of the Burkes key arguments, which is a devious practice, classified in legal terms as ‘bad faith’. (CFPB are guilty of this bad faith as well).

The point the Burkes make is echoed in a related case in Florida against Ocwen Altisource; “Reaching settlement terms was no easy feat. Counsel battled with Ocwen to obtain the evidence they needed to prove Ocwen systematically violated the TCPA. Ocwen litigated just about every possible issue, even when it was clear from ongoing accounts of Class Members that Ocwen continued to violate the TCPA. Plaintiffs moved to enjoin Ocwen’s behavior, and after taking testimony surrounding Ocwen’s consent practices, the Court agreed that Plaintiffs would be entitled to injunctive relief…” – Doc 220, p. 8, footnote 6 and p. 20.

Returning to the Burkes case, in order to obtain any evidence from Ocwen Altisource, intervention would be necessary. This is supported by the docket. At the time the Burkes filed the motion to intervene, there was a live case against Ocwen in S.D. Texas District court. By the time Judge Marra issued his opinion, which was only after prodding by the Burkes, the Burkes case in Texas was dismissed by the lower court, leaving an appeal as the only option to return the case to the docket.

[16] Based on the request being made in the Joint Case Management Plan.

[17] See; Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006); Explaining that “nonparties to a case routinely access documents and records under a protective order or under seal in a civil case” pursuant to Rule 24(b) and this is achieved in many instances through motions for permissive intervention.

[18] “Decker has candidly acknowledged that she seeks the records in order to attempt to invoke offensive collateral estoppel against American Motors in the California action. ” Wilson v. American Motors Corp., 759 F.2d 1568, 1569 (11th Cir. 1985).

[19] See Doc. 408, p. 4; (2) The Burkes’ do not prevail against Ocwen, in which case the Burkes’ can seek restitution in this case and may find new evidence to help with any potential motions and/or appeals). In either (1) or (2) lntervention will allow Applicants access to sealed documents and discovery in the case which will be helpful to the ongoing case in Texas against Ocwen.

[20] The CFPB did attempt to pass off a case. As explained separately in this reply, it has been discounted as it’s based on fraudulent conduct.

[21]  Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996).

[22] The judge’s statement in this regard is a contradiction. He starts with “the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention” and then admits to the fact there are common questions of fact or law in support by the Burkes.

[23] Cambridge Dictionary Definition; the amount by which two things or activities cover the same area ; https://dictionary.cambridge.org/dictionary/english/overlap

[24] See “Joinder of Altisource to the Law Suit is Essential “…lf this Application to Intervene is granted, it would be a request of this Court, to allow joinder of shell company Altisource,” Doc. 237, p. 25-28.

JOANNA BURKE

By      s/ Joanna Burke                                    

JOANNA BURKE

JOHN BURKE

By      s/ John Burke                               

JOHN BURKE

46 Kingwood Greens Dr.,
Kingwood, TX, 77339
Telephone: (281) 812-9591

Pro Se for Plaintiffs-Appellants

Certificate of Service

We hereby certify that, on April 29, 2020, a true and correct copy of the foregoing Brief of Appellants was served via the Court’s EM/ECF system to the attorneys of record per the CIP listing enclosed herein.

 

         s/ Joanna Burke                        

JOANNA BURKE

 

         s/ John Burke                            

JOHN BURKE

Certificate of Compliance

The undersigned counsel certifies that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font, with the exception of footnotes, which are in proportionally spaced typeface using Microsoft Word 2010 in Times New Roman 12-point font.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,489 words, excluding the parts exempted under Fed. R. App. P. 32(f).

         s/ Joanna Burke                        

JOANNA BURKE

 

         s/ John Burke                            

JOHN BURKE

No. 19-13015

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JOANNA BURKE; JOHN BURKE,
Plaintiffs-Appellants,

v.

CFPB, OCWEN LOAN SERVICING, L.L.C.,
Defendants-Appellees.

On Appeal from the United States District Court
For the Southern District of Florida;
District Court Docket No. 9:17-cv-80495-KAM

CFPB CHILD REPLY BRIEF [OF APPELLANTS]

Joanna Burke
46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576
John Burke
46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576

Pro Se Appellants

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1 and Federal Rule of Appellate

Procedure 26.1, Appellants hereby furnish a complete list of the following persons who have an interest in the outcome of this case.

US District Judge;

Marra, Kenneth A.

US Magistrate Judge;

Matthewman, William

Consumer Financial Protection Bureau (“CFPB”);

Brenowitz, Stephanie C.

Baez, Tianna Elise
Chin, Shirley T.
Cohen, Adam Harris
Demille-Wagman, Lawrence
Desai, Atur Ravi
Healey, Jean Marie
Kelly, Erin Mary
Nodler, Gregory Ryan
Posner, Michael
Roberson, Amanda Christine
Savage, James Joseph
Singelmann, Jan Edwards
Wilson, Jack Douglas

Office of the Attorney General  &
Office of Financial Regulation;

Fransen, Scott Ray
Granai, Sasha Funk
Pinder, Jennifer Hayes
Winship, Blaine H.

Intervenor Plaintiff;

Burke, Joanna
Burke, John

Fauley, Robynne (TERMINATED)
Subramaniam, Denise (TERMINATED)

 

Ocwen Financial Corporation &
Ocwen Loan Servicing, LLC &
Ocwen Mortgage Servicing, Inc.;

Azuero, Catalina E.
Berry, Bridget Ann
Craven, Laura S.
Hefferon, Thomas M.
Previn, Matthew P.
Protess, Amanda B.
Riffee, Matthew L.
Rose-Smith, Sabrina M.
Sheldon, Matthew S.
Smith, Tierney E.
Stoll, Laura
Tayman, W. Kyle
Wein, Andrew Stuart

Law Firms;
Buckley, LLP (“Buckley”)
Greenberg Traurig (“GTLaw”)
Goodwin Proctor, LLP (“Goodwin”)

Dated; 29th April, 2020;

 

/s/ Joanna Burke
Joanna Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: kajongwe@gmail.com

/s/ John Burke
John Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: alsation123@gmail.com

 

 

I.                              TABLE OF CONTENTS

Page

 

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT. i

I………. TABLE OF CONTENTS. v

II…….. TABLE OF AUTHORITIES. viii

III……. SUMMARY OF THE ARGUMENT. 1

  1. TILA; “Truth Incriminates Lying Attorneys” – the Anti-Consumer Agency.. 1

IV…… ARGUMENT:  EVALUATION OF CFPB’S RESPONSE(S) 10

  1. APPELLANTS MOTION TO INTERVENE. 10

(a)       The Altisource Joinder Question.. 10

(b)        The CFPB, President Trump, His Cabinet and Known Conflicts of Interest. 12

V…….. The Burkes Motion Does Not Establish ANY of the Prerequisites for Intervention as a Matter of Right Under Rule 24(a)(2) 13

  1. APPELLANTS HAVE NOT ESTABLISHED A SUFFICIENT INTEREST IN THE TRANSACTIONS THAT ARE THE SUBJECT OF THE BUREAU’S ACTION.. 13
  2. B. THE APPELLANTS INTERESTS ARE NOT AT RISK OF BEING IMPAIRED AND MAY BE PURSUED WITHOUT THEIR INTERVENTION IN THIS ACTION.. 17
  3. APPELLANTS’ INTERESTS IN THIS LITIGATION, IF ANY, ARE ADEQUATELY REPRESENTED BY THE BUREAU.. 19

VI…… THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR PERMISSIVE INTERVENTION.. 19

  1. A. THE DISTRICT COURT ACTED WITHIN ITS DISCRETION IN DENYING PERMISSIVE INTERVENTION WHEN APPELLANTS CAN ASSERT THEIR RIGHTS THROUGH SEPARATE ACTIONS. 20
  2. B.  APPELLANTS HAVE NOT IDENTIFIED A COMMON QUESTION OF LAW OR FACT. 23
  3. C. INTERVENTION WOULD UNDULY PREJUDICE THE RIGHTS OF THE OTHER PARTIES. 24

VII….. APPELLANTS’ OTHER ARGUMENTS WERE WAIVED BELOW AND, IN ANY EVENT, LACK MERIT. 25

  1. APPELLANTS ARE NOT ENTITLED TO INTERVENE TO REPLACE THE BUREAU BASED ON SPECULATION THAT THE BUREAU MAY BE UNABLE TO PROSECUTE THIS ACTION OR OTHERWISE. 25
  2. APPELLANTS CANNOT INTERVENE TO PURSUE PRIVATE DISCOVERY.. 25

VIII… CONCLUSION.. 28

Certificate of Service. 29

Certificate of Compliance. 30

 

I.                              TABLE OF AUTHORITIES

Page(s)

CASES

Anderson Columbia Envtl., Inc. v. United States, 42 Fed. Cl. 880, 882 (1999)…. 17

Case 9:17-cv-80495-KAM Doc. 469, 9/19/2019………………………………………….. 7

Christiana Tr. v. Riddle, 911 F.3d 799, 806 (5th Cir. 2018)………………………….. 18

Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302, at *19 (5th Cir. Mar. 3, 2020)……………………………………………………………………………………. 2

Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996)……………………………….. 7

Fox v. Tyson Foods, 519 F.3d 1298, 1301 (11th Cir. 2008)………………………….. 20

Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019)………………………………………………………………………….. 21

Hughes, 350 F.3d at 1160, 1162-63…………………………………………………………. 14

Joanna Burke v Hopkins Law, PLLC, et al, Case 4:18-cv-4543, District Court, Southern District of Texas, Houston Division…………………………………………………….. 16

Joanna Burke v Ocwen Loan Servicing, LLC, Case 4:18-cv-4544, District Court, Southern District of Texas, Houston Division…………………………………………………….. 15

Logan v. Hall, 604 F. App’x 838, 6 (11th Cir. 2015)…………………………………… 14

Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993)……………. 14

Mid-Continent Casualty Company v. Basdeo, No. 08-61473-CIV-ZLOCH (S.D. Fla. Aug. 7, 2009)…………………………………………………………………………………………….. 17

Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006)………………………………….. 27

Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 956 (9th Cir. 2009)…. 24

SanMedica Int’l v. Amazon.Com Inc., No. 2:13-cv-00169 (D. Utah Nov. 2, 2015) 28

Worlds v. Dept. of Health & Rehab. Services, 929 F.2d 591, 594 (11th Cir. 1991) 17

I.   SUMMARY OF THE ARGUMENT

1.     TILA; “Truth Incriminates Lying Attorneys” – the Anti-Consumer Agency

When you hire a service provider, most people perform due diligence. In the professional arena of legal services, this includes law firms and their lawyers. For a government watchdog, these tasks prove more difficult as they are an enforcement agency. That said, since the financial crisis and the creation of the Consumer Financial Protection Bureau (“CFPB”)[1], they’ve managed to end up on the front page of mainstream newspapers editorials or alternatively well-researched and reasoned op-ed’s e.g. the New York Times (“NYT”).[2] When they generally do, it’s habitually for all the wrong reasons. As we know, almost everyone with a NYT or similar subscription, or maintains an interest in the United States government and political news, generally shows an interest in who’s who in government.

This includes the CFPB, an agency who harvests its gargantuan powers from inside the Fed.[3] News stories highlighted these federal employee’s backgrounds, including why are they being paid supersized[4] salaries and emoluments to do this special taskforce work. Sen. Brown along with many others have questioned this agency’s powers and performance over recent years and in particular since Trump and his cabinet took office.

None more so than the appointment of Mick Mulvaney as Acting Director of the CFPB. While in Congress, Mulvaney was openly hostile to the CFPB, saying: “I don’t like the fact that [the] CFPB exists, I will be perfectly honest with you.”[5]

Readers will peek at an article with a well-crafted click-bait headline and salacious story to learn more. The extra the intrigue, the more the subscriber paywall offers will be met with an anxious credit card payment by the curious non-subscribers. You can align this with paying for a PACER document – the necessity to read a recent court order online to find out the decision in a related case which may influence your next brief or motion.

Most of the public, including the Burkes, believe only the top legal talent would be recruited to these positions and as such, their ethics and work product would be impeccable. Unfortunately, based on the Burkes interactions with these watchdog lawyers combined with this intervention experience to-date, that curated image has been completely tainted.

Let’s start with the awful errors attributed to the CFPB at the lower court, before the Burkes even filed their motion to intervene in the Florida case. The Burkes reached out to a few attorneys at CFPB prior to intervention and Ms. Jean Marie Healey, named counsel in this case responded with a curt email, effectively dismissing the Burkes request for assistance.[6] The CFPB lawyers’ response supported the Burkes decision to intervene, as the CFPB had refused to help or even arrange a time on the phone to discuss the case.

Once the Burkes did intervene, the parties at that time in the S.D. Fl. case included Ocwen Altisource and CFPB. After Judge Marra disposed of the Burkes, they timely filed an appeal and to that end, started receiving notices from the Eleventh Circuit. One of those early notices disclosed the lawyers counsel. For Ocwen Alitsource, the parties were easily traced while performing background checks. The same could not be said for ‘Jack or John’ Barrett for the CFPB. The Burkes emailed for clarification (in part);

We received your forms from Ms Rose-Smith who has an accessible profile on her company website. https://www.goodwinlaw.com/professionals/r/rose_smith-sabrina

Our question for CFPB’s ‘Jack’.

Mr Barrett are you the same person as on the RD Legal case, where your email is Bernard.Barrett@cfpb.gov, listed for one Bernard John Barrett, Jr., Senior Litigation Counsel – is this you?

Do you have several emails and pseudonym’s with CFPB?

Your earliest clarification would be appreciated as the internet has a person of similar name that was shown as a “former” employee of CFPB ; https://www.federalpay.org/employees/bureau-of-consumer-fin-pro/barrett-bernard-john-jr and maybe working with; https://www.federalpay.org/employees/commodity-futures-trading-commission/barrett-bernard-john-jr (commodity future trading commission)

Thank you for your attention to this concern, if CFPB has a profile for its active court lawyers / snr litigation counsel, it is not very easy to find…”

Responding, Mr. Barrett  avoided a direct answer about his use of names in court filings and from the extrajudicial sources, but in effect he confirmed his dual identities by identifying two distinct emails. There may be more emails, but he admitted to the two shown below.  It shows he clearly treats this as ‘normal’ behavior, as does his employer;

“Thanks for your email. I can be reached at either Bernard.Barrett@cfpb.gov or at Jack.Barrett@cfpb.gov.”

The Burkes certainly don’t view this as either ethical or legally acceptable. Intentionally switching between legal names in lawsuits and using two variations of your name as a government lawyer is deceptive and should not be allowed in law. See; 18 U.S. Code § 1342 (Fictitious name or address). It categorizes the lawyer as untrustworthy. Furthermore, as the lawyer is an agent of the agency, who condones his acts, this contaminates any trust in that watchdog agency.

Returning to the lower court case, the CFPB not only decided to join with Ocwen Altisource in its objection to the Burkes motion to intervene (Doc.224), these watchdog lawyers at the ‘Consumer Protection’[7] Bureau even authored the response. However, that was not all. The CFPB had the audacity to use a template document which they used to repel prior consumers in this civil action who had sought to intervene. Now you may reason that would be the end of the catastrophic decision-making by these highly paid legal watchdogs. You’d be mistaken. When citing cases to claim the Burkes could not intervene due to the CFPA (Doc. 224, p.5), they relied on Judge Marra’s ruling (for bonus points), but never checked if the case was appealed, which it was, and the resulting order of this court was to find Judge Marra’s interpretation of the law in error, and thus this court reversed.[8]

On review of  the ‘consumer-first ’ agency’s response to the Burkes in this appeal, they erroneously and repetitively maintain a legally flawed argument, because of bad faith omissions, claiming the Burkes have failed to pass any of the intervention prongs or tests required to intervene as a right or permissively.[9]

For example, these watchdog lawyers targeted the Burkes timeliness prong, relative to joining the lower court case too late. The argument was without substance.  It is rebutted in Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996). In Edwards, the Fifth Circuit noted that a motion to intervene “filed prior to entry of judgment favors timeliness, as most of our case law rejecting petitions for intervention as untimely concern motions filed after judgment was entered in the litigation,” id. at 1001 (citations omitted).

Next, the Burkes would point out another spoiler to the watchdog lawyers’ response. The CFPB allege the Burkes  constitutional challenges fail because it was not properly before the lower court and thus, this court. Before responding to these claims, it is prudent to remind this court that the CFPB could not make up its own mind whether it was a constitutional or unconstitutional agency. After repeatedly stating it was constitutional, Kathy Kraninger, in a letter to Nancy Pelosi, reversed, stating that the CFPB was unconstitutional.[10] This was also noticed officially in the lower court.[11]

It is also worth deviating at this point to discuss the ‘Marra [and the] Lamp doctrine’. A dusty and aged motion to dismiss submitted by Ocwen Altisource on June 23, 2017[12] was finally addressed by Judge Marra.

With this magical doctrine, the lower court genie judge is allowed to rub the lamp and is able to see the future decisions of the US Supreme Court.

The Marra Lamp was relied upon in this case prior to the CFPB eventually admitting that the consumer watchdog agency was unconstitutional.

After a quick rub, the Judge was able to predict and legislate from the bench that the CFPB is constitutional.

Good to know, reminds the Burkes of the All American[13] case 3-panel which likewise ruled prematurely and then were vacated en banc. A second rub of the Marra Lamp provided an alternative, which stated that even if the CFPB was unconstitutional, the higher court would rely on the guillotine to sever, thus would resolve the argument, and which would ensure the acts and statute(s) in question were undisturbed by all the brouhaha. The Burkes suggest the justices at the Supreme Court will need to make room for the Marra Lamp and the this terms’ decisions will be made sua sponte.

As a result of his order (Doc.452, Sept. 5, 2019), the magical Judge rubbed up both parties the wrong way. He used his doctrine to ensure that Ocwen Altisource’s ‘meaningful relief’ argument (dismiss the case with prejudice) would not pass muster but also seriously doubted the complaints which the CFPB presented were sound and not shotgun pleadings. As such the CFPB’s case needed repleading.

Returning to the watchdog’s constitutional claims, the Burkes believe they are confused. The Burkes did make the claims below (e.g. Doc. 237, p. 32+) and they repeated those in summary format in their initial brief. The Burkes  also discussed the CFPA being tossed as unconstitutional in a sister circuit in a similar case.

Also, the Burkes wish to clarify the erroneous interpretation that the Burkes wished to take over a governmental role in the lower court proceedings, if the CFPB were ejected. No, rather the Burkes were expressing that they could and most likely via pro bono counsel (as discussed), would seek to modify the complaint to accommodate this loss in a now private plaintiff action, and/or if the Burkes prevailed on their complaint, there would be new case law which may be relied upon by affected consumers ‘in their own litigation’ or class action etc. The options are many, but certainly the Burkes were cognizant of the restriction(s). However, they were also positive about the future of the case, as  if appointed as intervenor-plaintiffs, Ocwen Altisource’s case could proceed. Without the Burkes, the case would have been at an end as there was only the CFPB as sole plaintiff at the relevant time periods.

II.  ARGUMENT:  EVALUATION OF CFPB’S RESPONSE(S)

A.   APPELLANTS MOTION TO INTERVENE

“The court held that Appellants “do not meet the requirements for intervention…”

The Burkes have addressed the requirements in the master reply brief. Below the Burkes expand on the master brief, by responding with particularity to the CFPB’s bad faith brief.

(a) The Altisource Joinder Question

The Burkes authored a lengthy historical background of known facts about $3 billion dollar admonished Ocwen and its plethora of related entities, including Altisource. This included the checkered past and resume of William C. Erbey, founder of Ocwen. Erbey’s control over Ocwen Altisource continues to this very day, despite the empty arguments claiming the contrary. One of the reasons for including this in the Burkes motion and supplement was to provide a comprehensive background and also to show why Altisource should be a party to the case, especially since the proprietary REALServicing software is rented from Erbey’s Altisource to Ocwen. This software platform has been criticized repeatedly in the Consumer Protection Watchdog’s complaint. Yet the CFPB joined once more with Ocwen Altisource in repelling a member of the public’s attempts to unseal invited third-party Altisource’s objections to unsealing of Altisource documents in the lawsuit.  The CFPB did not object to keeping those documents sealed.[14] The Burkes documented that they would seek to join Altisource if they were allowed to intervene.

“Hardly a “bare thread recital” the Burkes motion and memorandum spanned 69 pages of coherent and sensible reasoning why the Burkes should be allowed to intervene and why adding [Ocwen] Altisource as a party is essential.

Both the CFPB and Ocwen Altisource completely avoid any reference to the Burkes statements about joinder of Altisource as a defendant in their brief(s). Both parties have remained silent and completely snubbed many of the Burkes statements. In fact, it only required 10 days for the colluding and conspiring parties to take an adversarial position, one which was motivated by bad faith, against the would-be intervenors. In those 10 short days the Consumer Protection watchdog quickly amended and filed its template-driven joint objection to the Burkes motion to intervene (Doc. 224).

(b) The CFPB, President Trump, His Cabinet and Known Conflicts of Interest

The Burkes detailed the many conflicts of interest which were of concern, including the potential impartiality of the CFPB and its future decision-making in this litigation.

For example, the lower court case was filed by the CFPB in April 2017. At that time Richard Cordray was the Director:

“Cordray has said that after President Trump was inaugurated, Trump and Office of Management and Budget Director Mick Mulvaney worked to undermine Cordray and the CFPB. On November 15, 2017, Cordray announced his resignation as director of the CFPB, sparking a legal dispute over who would succeed him as acting director.”[15]

The Burkes detailed known facts pertaining to Commerce Secretary Wilbur Ross[16], a former Ocwen Altisource Director prior to his appointment by Trump who settled a case in Florida federal court claiming he was insider trading while at Ocwen Altisource. This factual case information was detailed in the Burkes original motion and supplement in support.

In the same motion to intervene and supporting documents, the Burkes also detailed Trump’s financial cabinet members, including Joseph Otting and Steve ‘foreclosure king’ Mnuchin. This included these cabinet members past resumes, including their known roles in the immediate chaos and aftermath – now known as the Great Recession and where they circled like vultures over the citizens while purchasing banks for cents on the dollar and then executing sordid plans to filch the most vulnerable citizens homes.

The Burkes recognized how important this case and their intervention was, while in possession of a wrongful order of foreclosure, a judgment which will allow the illegal taking the Burkes Texas homestead.   The Burkes are also aware of the ‘political’ hurdles they have to overcome, including bad faith conduct, when the opposing parties collude and conspire because they don’t particularly like the fact-based and true story they are reading.

III.   The Burkes Motion Does Not Establish ANY of the Prerequisites for Intervention as a Matter of Right Under Rule 24(a)(2)

A.    APPELLANTS HAVE NOT ESTABLISHED A SUFFICIENT INTEREST IN THE TRANSACTIONS THAT ARE THE SUBJECT OF THE BUREAU’S ACTION

The Burkes object to the narrow and/or heavily-edited wording of the response. The majority of the Burkes arguments are misstated or ignored entirely. The Burkes restate, this was accomplished collusively with Ocwen Altisource, who mirror the CFPB’s statements in their now separate replies in this appeal, unlike the co-conspirators openly joint commitment to eject the Burkes from the lower court case.

Consequently, this is malicious and executed by both parties in ‘bad faith’[17].

They intentionally ignored pleadings from the pro se’s motion(s). This cannot be attributed to zealous advocacy. See; Malautea.

What did the CFPB ignore? Let’s start with Doc. 220. The Burkes have extracted relevant snippets from the Burkes motion, starting with the “Legal Standard”[18], which clearly shows the Burkes [emphasized] responses. This undoubtedly rejects the CFPB’s claims and affirms why the Burkes responses meet the necessary legal standard(s) in this motion;

LEGAL STANDARD (With the Burkes emphasized responses. This is exactly how it looks in the original motion).

An applicant may intervene as of right when the applicant :

(1) makes a timely motion; The original CFPB complaint, Doc. 1 was filed, April 20, 2017. The current latest recorded filing is dated, Dec 3, 2018, Doc. 209, an Order pertaining to discovery requests. The parties are still gathering information. The case has yet to reach trial, there is no final order. This intervention would not be prejudicial to the parties as it will not disrupt a final judgment. This motion is timely.

(2) has an interest relating to the property or transaction that is the subject of the action; See Joanna Burke v Ocwen Loan Servicing, LLC, Case 4:18-cv-4544, District Court, Southern District of Texas, Houston Division.

(3) is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest;

Ocwens refusal to comply directly to the Burkes’ Qualified Written Request (QWR)[15] or via its unauthorized and unbonded attorneys-at-law, [16] defined by Texas law as debt collectors, will cause injury which will prevent Applicants from defending the impending foreclosure order and sale.

The accounting debt claimed by Ocwen is so egregious (a $615,000 loan now stated to be a debt of nearly $1.2million dollars according to Ocwen) that there will be unjust enrichment as a result of Ocwens failure to provide detailed answers to the Applicants requests, including material matters such as accounting and proof of transfer of the loan servicing from prior mortgage servicing companies to Ocwen Loan Servicing, LLC.

[15] Whilst attorneys “representing” Ocwen claim the QWR is deficient, the Applicants maintain it is valid. This is discussed in the Motion herein.

[16] See Joanna Burke v Hopkins Law, PLLC, et al, Case 4:18-cv-4543, District Court, Southern District of Texas, Houston Division.

(4) where the applicant’s interests are not adequately represented by the existing parties. Applicants can confirm applicants interests are not adequately represented, as detailed herein and in the Memorandum.

The government agency continues with its malicious conduct;

“Since Appellants’ initial motion, they have failed to explain any connection between their foreclosure dispute and this litigation, failed to even describe their dispute with Ocwen, and made no attempt to place their dispute with Ocwen in the context of this pending Bureau enforcement action.”

This is a bad faith statement. The Burkes did explain the connection between their foreclosure dispute, the underlying case, including Ocwen Altisource’s relationship to the Burkes complaint and reasons for requesting intervention, including in the context of the consumer protection watchdog’s civil action. The Burkes provided six reasons and which the CFPB have intentionally ignored. These six reasons are listed in the master reply brief.

“Their unexplained mortgage dispute may be independently substantial, and their rights certainly may be subject to legal protection, but they provided no basis for the district court (or this Court) to conclude that they have a significant, particularized interest in this action, as opposed to a general grievance.

Appellants have thus not met their burden to establish a sufficient interest for intervention by right, and the district court committed no error in denying their motion for intervention by right.

The bad faith and malicious conduct here is incessant and there is no defense as it has all been memorialized in print. For example, see Exhibit B, Doc. 237, p. 18-20. And the Burkes confirm their persuasive legal posture with supporting case law; Mid-Continent Casualty Company v. Basdeo, No. 08-61473-CIV-ZLOCH (S.D. Fla. Aug. 7, 2009). The Burkes have stated time and time again that their homestead is clearly and unequivocally a legally protectable interest which qualifies for the purposes of intervention as a right. This response and case law remains unchallenged.

B.   THE APPELLANTS INTERESTS ARE NOT AT RISK OF BEING IMPAIRED AND MAY BE PURSUED WITHOUT THEIR INTERVENTION IN THIS ACTION

In part… “But “[a] prospective intervenor is also not likely to suffer impairment of its interests where it is free to assert its rights in a separate action.” Anderson Columbia Envtl., Inc. v. United States, 42 Fed. Cl. 880, 882 (1999); see also Worlds v. Dept. of Health & Rehab. Services, 929 F.2d 591, 594 (11th Cir. 1991)…”

The Burkes previously corrected the CFPB’s statements regarding the Burkes past and current litigation. The Deutsche Bank Fraud case would have failed the test for intervention. However, the new Ocwen’s Note lawsuit in Texas would pass the intervention test(s) necessary for the underlying case. The CFPB intentionally ignored the Burkes statements. To recap, the Burkes filed  case against Ocwen in S.D. Tex. due to the 5th Circuits then recent decision in Riddle.[19] The Burkes case against Ocwen’s Note was dismissed for want of prosecution on March 19, 2019, Doc. 29. A motion to reinstate was denied on April 16, 2019, (Doc. 31) and on April 18, 2019 the Burkes filed their notice of appeal, (Doc 32) to the Court of Appeals for the Fifth Circuit which is fully briefed and currently pending a decision at the time of this filing. What this confirms, is the cases cited, Anderson and Worlds are not relevant here. The Burkes fully disclosed that they had ‘asserted their rights in a separate action’. Indeed, they explained why that was necessary to obtain intervention as a right, the Riddle precedent. This is discussed as well in the master reply brief.

C.   APPELLANTS’ INTERESTS IN THIS LITIGATION, IF ANY, ARE ADEQUATELY REPRESENTED BY THE BUREAU

As the Burkes have made very clear, bad faith is terminal to the CFPB’s claims. The Burkes rest in reliance of the supporting evidence discussed earlier and in the master reply brief.

IV.  THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN DENYING THE MOTION FOR PERMISSIVE INTERVENTION

The CFPB states;

“The district court also denied Appellants’ motion for permissive intervention, a decision this Court reviews only for “clear abuse of discretion.”  Fox, 519 F.3d at 1301.

Continuing with the CFPB’s reliance on Judge Marra’s case citation, namely Fox for relying on the clear abuse of discretion standard, it is a rather unfortunate choice, if you review the actual facts of the case and apply them here. First, Fox is a completely different type of intervention/case, e.g. a class action case which had already been denied certification previously and the intervenors were arguing re tolling. Also, unlike the current case, Fox had commenced several years before[20];

“If the district court erred when it denied intervention of right or clearly abused its discretion when it denied permissive intervention, we have jurisdiction to reverse the denial of the motion to intervene” Fox v. Tyson Foods, 519 F.3d 1298, 1301 (11th Cir. 2008).

A.   THE DISTRICT COURT ACTED WITHIN ITS DISCRETION IN DENYING PERMISSIVE INTERVENTION WHEN APPELLANTS CAN ASSERT THEIR RIGHTS THROUGH SEPARATE ACTIONS.

“… permissive intervention would appear to be almost untenable on its face.” See Worlds….”

Any reasonable person reviewing the case relied upon by the CFPB would reach the same conclusion. The facts in Worlds are indeed ‘worlds apart’ to the facts here. In Worlds, the 11th Circuit reviewed a decade old case (see footnote referencing Worlds above) and where intervenors are trying to join. Besides, it is a class action case where; “Appellant and the other 154 proposed intervenors sought intervention of right in the district court.” Worlds v. Dept. of Health Rehab. Services, 929 F.2d 591, 593 (11th Cir. 1991).

Here, the Burkes are stand-alone intervenors. Two [re]tired citizens trying to save their ‘protected and protectable’ homestead from wrongful foreclosure and who submitted their motion to intervene as would-be plaintiff-intervenors at the earliest possible time (See master brief).

The judge’s ‘discovery’ argument and the CFPB’s reliance on that specific period of time prior to the Burkes application to intervene, fails in law and it was not supported by any case law, either by the judge or the respondents.

In relation to the Consumer Protection watchdog’s next argument, that the Burkes “have pursued their claims in separate actions” is factually true, but the argument presented is shrouded in lies and deception.

First, refer to the Greens[21] case in the master reply brief. The Greens obtained evidence; known discovery transcripts from the case at the lower court to use specifically in their own case against Ocwen.

Second, they did not intervene to receive those documents.

Third, Ocwen Altisource aggressively contested the Bankruptcy Judge Isgurs’ decision in S.D. Texas and U.S. District Judge Atlas reviewed and affirmed the order allowing the GreenS to keep and use those documents in their own case.

Fourth, the documents were ‘under seal’ and did not need an order to unseal from the lower court to obtain these files. It should be noted, however, the files have been kept ‘sealed’ in Texas via a protective order.

Fifth, this clearly extinguishes any argument that Judge Marra and the CFPB may rely upon.

Permissive intervention was denied erroneously as Judge Marra has the option of restricting permissive intervention ‘to fit the glove’ as it were.

Here, despite the Burkes requesting a ‘diluted or restricted’ version of permissive intervention if the judge was going to deny ‘full’ permissive rights, he elected to deny the Burkes outright.

This is not something that is ‘raised for the first time’ or ‘not brought up before the court correctly’ at reconsideration, as the CFPB alleges. No, rather this is about application of the law by a qualified sitting district judge who has been on the federal bench for decades.

This was not, nor can it be claimed to be a mistake or an oversight on the judge’s part. This was a deliberate act to refuse the Burkes even restrictive permissive intervention, and despite the fact the court would have known about the Greens case.  But even without that knowledge, Judge Marra was well aware the Burkes could obtain at an absolute minimum, restricted intervention.

What the Greens case proves beyond a reasonable doubt is the fact the CFPB’s co-conspirators, Ocwen Altisource cannot deny they are litigating the Greens case in S.D. Tex.  and they aggressively attempted to stop the Greens from keeping the documents (no doubt fearing the Burkes may discover this evidence). By denying permissive intervention, full or restricted, the Greens case proves that was clear error and more significantly, a fraud has been committed. In summation, the Burkes contend the CFPB must have known about the Greens case – as colluding partners always share this type of information to try and keep their stories, or as mirrored in this appeal, their briefs and arguments in perfect unison.

Also, the Burkes have already discussed in the master reply brief that in order to become a plaintiff-intervenor, the Burkes had to intervene and they also needed to pursue Ocwen’s Note separately, based on the newly published Riddle[22] case.

B.   APPELLANTS HAVE NOT IDENTIFIED A COMMON QUESTION OF LAW OR FACT

“…Moreover…“the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention.”…

The Burkes have answered this above and in the master reply brief. It has been written in bad faith by the CFPB.

C.   INTERVENTION WOULD UNDULY PREJUDICE THE RIGHTS OF THE OTHER PARTIES

“Appellants sought to intervene in this action 20 months after it was filed and after 17 months of discovery.[23]

A district court does not abuse its discretion by relying on prejudicial delay to deny a motion for permissive intervention. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 956 (9th Cir. 2009) (“It was well within the district court’s discretion to find that the delay occasioned by intervention outweighed the value added … .”)…”

The Burkes have excluded the reference to Perry case because the CFPB is again editing what it wants the court to read and is based on dishonesty. This undermines the integrity of the adjudicative process.  Eleventh Circuit Judge Branch has claimed that she ‘pulls’ the citations and any other dubious claims made by lawyers in filings and checks them for accuracy. If the lawyers have been untruthful, then that doesn’t bode well. Let’s be honest, a 9th Circuit case slotted into the brief is going to stand apart, and it did for the Burkes. Here’s a perfect example, by the highly paid lawyers for a government agency, as to why you check the wording of citations on the recommendation of Judge Lisa Branch[24];

“The district court also reasoned that “permitting . . . the Campaign to intervene might very well delay the proceedings, as each group would need to conduct discovery on substantially similar issues.” The Campaign’s intervention was unnecessary given that the parties were “capable of developing a complete factual record encompassing [its] interests.”” – Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 955 (9th Cir. 2009)

V.   APPELLANTS’ OTHER ARGUMENTS WERE WAIVED BELOW AND, IN ANY EVENT, LACK MERIT

That statement is false and proven herein to be so.

A.   APPELLANTS ARE NOT ENTITLED TO INTERVENE TO REPLACE THE BUREAU BASED ON SPECULATION THAT THE BUREAU MAY BE UNABLE TO PROSECUTE THIS ACTION OR OTHERWISE

This is discussed in the summary of the argument above.

B.    APPELLANTS CANNOT INTERVENE TO PURSUE PRIVATE DISCOVERY

“Appellants make a second argument here that was not properly raised below. They contend, without further explanation, that they “wish to obtain facts and access documents which would help their current and ongoing Appellate case in Texas.” Appellants’ Brief at 46- 47 (referring in part to obtaining sealed documents).

The district court noted “that intervention is not permitted to allow a party to seek or obtain evidence for other litigation … .” Order on Motion for Reconsideration. Doc. No. 411 at 3.”

Recently, and most certainly after Doc. 411 was issued by Judge Marra, the Burkes happened across a case which brings into question the integrity of the citation above. The case below, which will be referenced as “Greens” for short, is one of a series of actual cases by the Texas homeowners, the Greens, at the S.D. Tex. court.

A summary of the Greens own foreclosure case(s) can be summarized by US District Judge Nancy Atlas’s Order rubber-stamping Bankruptcy Judge Marvin Isgur’s order, and allowing the Greens to retain access to the following ‘discovery’ documents for their own case against Ocwen. The documents which the Greens actually obtained, and Ocwen attempted to quash, would be from the lower court case in Florida. That is correct, these are documents (under seal), from the CFPB v. Ocwen case before Judge Marra and which now on appeal before this court. Here’s an extract of Doc. 9, the Joint Case Discovery and Management Plan, p. 5, Case #18-03351, S.D. Tex. (Bankruptcy). Note; The CFPB were not a party, nor did they object to release of the lower court case documents identified below, in the Greens case(s):

“1) Plaintiffs seek a copy of all transcripts (deposition, hearing, or witness statements) that were specifically referenced in the complaint filed by the Consumer Financial Protection Bureau (“CFPB”) on April 20, 2017, against Ocwen Loan Servicing, Inc. in Case No. 9:17 CV-80495 in the Southern District of Florida, West Palm Beach Division (the “Complaint”). The CFPB specifically referenced in the Complaint that in June, 2016, Ocwen’s Head of Bankruptcy testified, “that more than 22,000 borrowers in bankruptcy were impacted by Ocwen’s failure to conduct a timely escrow analysis and that Ocwen is currently attempting to remediate these borrowers.”

A copy of the CFPB Complaint, Docket sheet, and contact information for Ocwen’s counsel in the CFPB litigation has been provided to Mr. Curran, Ocwen’s counsel in this adversary proceeding.”

What is abundantly evident is Judge Marra’s statement is factually incorrect and as such, untruthful.[25] Secondly, the CFPB continues with its erroneous claims that the Burkes failed to point out specifics in their Texas case(s), relative to the lower court case here and/or were not properly before the court.

“Once again, this argument was not made in Appellant’s Motion to Intervene below but instead was first raised in a letter to the district court after that briefing had been completed.[26] This argument too, was not properly before the district court and therefore is not properly before this Court. In addition, the authorities that Appellants cite in support of this argument are inapposite…”

The CFPB’s claim the Burkes are not journalists and the cases they cited were inapposite. They suggest the Burkes are not entitled to sealed records or documents for their own case. The Greens case terminates their argument(s). Had it not, then the Burkes would have cited more than the 3 following cases as examples; (1) “Mick Mulvaney (W.H. Chief of Staff) Real Estate Case Documents Unsealed”[27];  (2) Law Professor Tushnet’s intervention – and she also satisfied the other requirements to intervene and are relevant as well in this case;  SanMedica Int’l v. Amazon.Com Inc., No. 2:13-cv-00169 (D. Utah Nov. 2, 2015) and; (3) “OK to Oppose Sealing of Court Documents Without Local Counsel”; Explaining pro se members of the public  and not as a journalist allowed access to unseal records. Furthermore, it was achieved by “letter”.[28].

I.   CONCLUSION

The CFPB’s brief and mischief only bolsters the Burkes appeal. The lower court decision to deny intervention was an abuse of discretion, clear error and justifies any and all relief available to the Burkes by this honorable court.

[1] “The reason we are here today is that there was a financial crisis   a decade ago caused by predatory lenders. That crisis cost millions of Americans their jobs, their homes, their savings.” – extract from the opening statement of Sen. Sherrod Brown re the Consumer Financial Protection Bureau’s Semi-Annual Report to Congress, Apr 12, 2018.

[2] See; “Consumer Bureau’s Chief Gives Big Raises, Even as He Criticizes Spending” https://www.nytimes.com/2018/04/05/business/cfpb-mick-mulvaney-pay-raises.html

[3] “Congress turned to a familiar tool in response to the 2008 financial crisis—a new independent bureau. Enter the CFPB. Title X of the Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau and housed it within the Federal Reserve System (the “Fed”). ” Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302, at *19 (5th Cir. Mar. 3, 2020).

[4] “At the CFPB, he is handing out favors to Wall Street and shady lenders. He is lining the pockets of his top four political appointees with over $1 million in salaries. Remember I said there are eight political appointees, never been done in this agency. Four of those appointees together make over $1 million in salary. They are not economists. They are not doing the work of bringing actions against people who cheat consumers. They are political appointees. He has not taken on a single enforcement action that would continue the CFPB’s good work of putting money back in the pockets of consumers harmed by financial scammers, harmed by shady lenders.” – Sen. Sherrod Brown re the Consumer Financial Protection Bureau’s Semi-Annual Report to Congress, Apr 12, 2018.

[5] Transcript of U.S House Financial Services Committee hearing, June 25, 2015.

[6] See; Burkes Initial Brief, (14) The Applicants Reached Out to the CFPB, p. 28.

[7] “Before Mr. Mulvaney arrived, the CFPB was doing its job. It initiated a handful of enforcement actions every month on behalf of the consumers it was created to serve. It is a consumer-first agency. But now Mr. Mulvaney is trying to convince us that protecting families and prosecuting shady lenders is ‘‘pushing the envelope.’’ That is simply a lie. Protecting consumers is not ‘‘pushing the envelope.’’ That is the agency’s mission. It is a consumer-first agency. Look at the title: Consumer Financial Protection Bureau. It is a mission that Mr. Mulvaney is completely failing at.” – Sen. Sherrod Brown re the Consumer Financial Protection Bureau’s Semi-Annual Report to Congress, Apr 12, 2018.

[8] See: Appellants Brief, p.38: “BURKE RESPONSE: See Doc. 237; Exhibit C; “The CFPA Question: Can the Bureau Rely on CFPA to Prevent Individuals from Intervening?” [p. 33].” And then discussing the case and subsequent appeal [p.35-37].

[9] “The Appellants’ Motion Does Not Establish A-any of the Prerequisites for Intervention as a Matter of Right Under Rule 24(a)(2)” – p. 9

[10] See; https://www.consumerfinancemonitor.com/wp-content/uploads/sites/14/2019/09/Pelosi-letter.pdf

[11] See; Case 9:17-cv-80495-KAM Doc. 469, 9/19/2019 “NOTICE by Consumer Financial Protection Bureau to notify the Court that it has changed its position regarding an argument that it has presented.”

[12] See; Case 9:17-cv-80495-KAM Doc. 224, p.2.

[13] Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., No. 18-60302 (5th Cir. Mar. 3, 2020)

[14] XIII ORDER DENYING UNSEALING, [DOC 125], TAB 13; Neither Defendant nor Plaintiff oppose Altisource’s request that DE 87 and 88 remain sealed. See DE 93, DE 96

[15] Public information; Wikipedia; https://en.wikipedia.org/wiki/Richard_Cordray

[16] See; Doc. 237, Conflicts of Interest, Past, Present and Future; p. 28-32.

[17] All attorneys, as “officers of the court,” owe duties of complete candor and primary loyalty to the court before which they practice. An attorney’s duty to a client can never outweigh his or her responsibility to see that our system of justice functions smoothly…In the United States, the first Code of Ethics, in 1887, included one canon providing that “the attorney’s office does not destroy . . . accountability to the Creator,” and another entitled “Client is not the Keeper of the Attorney’s Conscience.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1546 (11th Cir. 1993)

[18] Preempting; To suggest that the pro se’s answers to these 4 requirements should not be in the “legal standard” section of a brief would denigrate the officers of the court and the judiciary as well as undermine the rule of law when motions and pleadings, however inartful, are to be construed liberally by the court(s). See; Hughes, 350 F.3d at 1160, 1162-63.” Logan v. Hall, 604 F. App’x 838, 6 (11th Cir. 2015) “Thus, the district court erred in dismissing the complaint without considering whether, under the principle of liberal construction for pro se pleadings, Logan’s complaint could be construed as requesting nominal damages).”

[19] Christiana Tr. v. Riddle, 911 F.3d 799, 806 (5th Cir. 2018); Holding; a bank is not liable for the mortgage servicers acts, even as an appointed agent.

[20] “The petitioners also argue that the district court abused its discretion by denying permissive intervention, but we disagree. In Worlds v. Department of Health Rehabilitative Services, we affirmed the denial of permissive intervention because the addition of 155 parties would have created undue delay and 10 years had already passed since the suit was filed. 929 F.2d at 593, 595. The same logic applies here. The district court did not clearly abuse its discretion when it denied permissive intervention because this action was filed several years earlier and Tyson would need at least an additional year to depose the 161 petitioners.” – Fox v. Tyson Foods, 519 F.3d 1298, 1304-5 (11th Cir. 2008)

[21] Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019)

[22] Christiana Tr. v. Riddle, 911 F.3d 799, 806 (5th Cir. 2018).

[23] As well as the previous cited cases in the Burkes filings, which are unchallenged by the CFPB, the Burkes also quoted earlier, and repeat as relevant here; Edwards v. City of Houston, 78 F.3d 983 (5th Cir.1996).

[24] During a panel discussion at the January 2020 Orlando, Florida, partisan Federalist Society gathering featuring Justice Thomas Clarence.

[25] See; Newby v. Enron Corp., 443 F.3d 416 (5th Cir. 2006); Explaining that “nonparties to a case routinely access documents and records under a protective order or under seal in a civil case” pursuant to Rule 24(b) and this is achieved in many instances through motions for permissive intervention.

[26] The Burkes would contend briefing is not complete and still open when the court delayed in the length of time it took to publish a decision, and only after the Burkes letter of reminder.

[27] Reason.com; https://reason.com/2020/03/03/mick-mulvaney-w-h-counsel-real-estate-case-documents-unsealed/

[28] Reason.com; https://reason.com/2019/08/21/ok-to-oppose-sealing-of-court-documents-without-local-counsel/

DATED: April 29, 2020

JOANNA BURKE

By      s/ Joanna Burke                                    

JOANNA BURKE

 

JOHN BURKE

By      s/ John Burke                               

JOHN BURKE

 

46 Kingwood Greens Dr.,

Kingwood, TX, 77339

Telephone: (281) 812-9591

 

Pro Se for Plaintiffs-Appellants

 

Certificate of Service

We hereby certify that, on April 29, 2020, a true and correct copy of the foregoing Brief of Appellants was served via the Court’s EM/ECF system to the attorneys of record per the CIP listing enclosed herein.

 

         s/ Joanna Burke                        

JOANNA BURKE

 

         s/ John Burke                            

JOHN BURKE

 

Certificate of Compliance

The undersigned counsel certifies that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font, with the exception of footnotes, which are in proportionally spaced typeface using Microsoft Word 2010 in Times New Roman 12-point font.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 6,490 words, excluding the parts exempted under Fed. R. App. P. 32(f).

 

         s/ Joanna Burke                        

JOANNA BURKE

 

         s/ John Burke                            

JOHN BURKE

The Marra Genie [and a] Lamp Doctrine

With this magical doctrine, the lower court genie judge is allowed to rub the lamp and is able to see the future decisions of the US Supreme Court.

No. 19-13015

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

JOANNA BURKE; JOHN BURKE,
Plaintiffs-Appellants,

v.

CFPB, OCWEN LOAN SERVICING, L.L.C.,
Defendants-Appellees.

On Appeal from the United States District Court
For the Southern District of Florida;
District Court Docket No. 9:17-cv-80495-KAM

OCWEN CHILD REPLY BRIEF [OF APPELLANTS]

Joanna Burke

46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576

John Burke

46 Kingwood Greens Dr
Kingwood, Texas
77339
Telephone: (281) 812-9591
Fax: (866) 805-0576

Pro Se Appellants

 

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1 and Federal Rule of Appellate

Procedure 26.1, Appellants hereby furnish a complete list of the following persons who have an interest in the outcome of this case.

US District Judge;

Marra, Kenneth A.

US Magistrate Judge;

Matthewman, William

Consumer Financial Protection Bureau (“CFPB”);

Brenowitz, Stephanie C.

Baez, Tianna Elise
Chin, Shirley T.
Cohen, Adam Harris
Demille-Wagman, Lawrence
Desai, Atur Ravi
Healey, Jean Marie
Kelly, Erin Mary
Nodler, Gregory Ryan
Posner, Michael
Roberson, Amanda Christine
Savage, James Joseph
Singelmann, Jan Edwards
Wilson, Jack Douglas

Office of the Attorney General  &
Office of Financial Regulation;

Fransen, Scott Ray
Granai, Sasha Funk
Pinder, Jennifer Hayes
Winship, Blaine H.

Intervenor Plaintiff;

Burke, Joanna
Burke, John

Fauley, Robynne (TERMINATED)
Subramaniam, Denise (TERMINATED)

 

Ocwen Financial Corporation &
Ocwen Loan Servicing, LLC &
Ocwen Mortgage Servicing, Inc.;

Azuero, Catalina E.
Berry, Bridget Ann
Craven, Laura S.
Hefferon, Thomas M.
Previn, Matthew P.
Protess, Amanda B.
Riffee, Matthew L.
Rose-Smith, Sabrina M.
Sheldon, Matthew S.
Smith, Tierney E.
Stoll, Laura
Tayman, W. Kyle
Wein, Andrew Stuart

Law Firms;
Buckley, LLP (“Buckley”)
Greenberg Traurig (“GTLaw”)
Goodwin Proctor, LLP (“Goodwin”)

Dated; 29th April, 2020;

 

/s/ Joanna Burke
Joanna Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: kajongwe@gmail.com

/s/ John Burke
John Burke, Pro Se
46 Kingwood Greens Dr,
Kingwood, TX,77339 Telephone:
(281) 812-9591
Facsimile:
(866) 705-0576
Email: alsation123@gmail.com

 

II.                           TABLE OF AUTHORITIES

Page(s)

Cases

Booze v. Ocwen Loan Servicing, LLC, Case 9:20-cv-80135-DMM, Doc. 12 (M.D. Fla., March 2, 2020)………………………………………………………………………………….. 8

Burke, et al. v. Hopkins Law, PLLC, et al., No. 4: l 8-cv-4543 (S.D. Tex. 2018)… 7

Burke, et al. v. Hopkins Law, PLLC, et al., No. 4:18-cv-4543 (S.D. Tex. 2018), Doc. 19, p. 7., 22nd Feb., 2019…………………………………………………………………………………. 9

Burke, et al. v. Ocwen Loan Servicing, LLC, No. 4: l 8-cv-4544 (S.D. Tex. 2018) 7

Deutsche Bank Nat’l Trust Co. v. Burke, et al., No. 4:l l-cv-1658 (S.D. Tex. 2011) 7

Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019)……………………………………………………………………………. 1

Jackson v. U.S. Bank , Civil Action No. 4:17-CV-2516, at *17-18  (S.D. Tex. Aug. 14, 2018)………………………………………………………………………………………………………. 8

Joanna Burke v Hopkins Law, PLLC, et al, Case 4:18-cv-4543, District Court, Southern District of Texas, Houston Division………………………………………………………. 5

III.   DISCLAIMER & ARGUMENT

Ocwen Altisource have furnished a separate brief in this appeal and the Burkes are providing a ‘summary of the argument’ herein. The Burkes, however, have reviewed Ocwen Altisource’s brief in conjunction with the CFPB’s and determined there’s only superficial differences between the two briefs, which are meant to mask the collusion and conspiracy between these two ‘opposing’ parties and appellees.  That scheme is transparent. However, it pales in comparison with the fraud perpetrated on the court(s) and the Burkes.  Ocwen Altisource have acted in bad faith as outlined in the preamble and disclaimer in the master reply brief. In particular, the Burkes are referring to the “Greens”See; Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13) (S.D. Tex. Aug. 26, 2019).  Based on the alarming facts, the conduct of the admonished nonbank and their lawyers in this case is repugnant. The dishonesty and deception alone by Ocwen Altisource and their appointed counsel is so egregious, the Burkes believe it should warrant the court striking every and all pleadings in this appeal, the lower court case and additionally, granting the Burkes intervention as of right. The Burkes also contend further disciplinary action should be mandatory, however, that decision is left for the discretion of the court(s).[1]

IV.   SUMMARY OF THE ARGUMENT

In this case, it has been openly recorded that Ocwen Altisource are reprehensibly partnered by opposing counsel. That’s right, a self-admitted unconstitutional government agency who [falsely] claim to be watchdogs and supporters of consumers, the Consumer Financial Protection Bureau (CFPB). However, that really does not come as a surprise to the Burkes when you consider President Trumps’ cabinet, e.g. Wilbur Ross, former Ocwen Altisource director, Joe Otting, reverse mortgage [‘Freedom’] eviction specialist for CIT and Steve ‘Foreclosure King’ Mnuchin. And let’s not forget Mick Mulvaney, former ‘Acting Director of the CFPB until the appointment of Kathy Kraninger, who was openly hostile to the CFPB and once said while in Congress: “I don’t like the fact that [the] CFPB exists, I will be perfectly honest with you.”[2] In 2018, as Acting Director, he formally started questioning how the agency functions.[3]

For these reasons and the arguments presented both herein (and in the master reply brief and child reply brief for CFPB), the Burkes had no alternative but to seek intervention as a right, or permissively because (i) the Burkes approached the parties directly and before filing the motion to intervene. They were repelled and; (ii) when the Burkes did file, all parties objected to the Burkes intervention, including the [self-admitted unconstitutional] “consumer watchdog” agency. As such no party can adequately represent the Burkes, who stand alone.

A.  The Burkes Pleadings Are More Than Legally Sufficient to Allow Intervention

While researching their legal options on how to rectify this injustice, these pro se’s learned for the first time about ‘intervention’. They did not know nor understand the laws around a motion to intervene prior to this, but strived to learn the law and rules as quickly and as best they could in a very short and accelerated manner in order to timely join the underlying lawsuit in contention here.

Within 30-days of the mandate being issued by the Fifth Circuit (Nov. 28, 2019) and entry of foreclosure in Texas (Nov. 29, 2018), the Burkes had typed up their motion to intervene and supporting memorandum, dated these documents on Dec. 27, 2018 and posted them to S.D. Fla. The lower court date-stamped both on Jan. 2, 2019 and applied Docs. 220/220-1 as references, entering this on the PACER/ECF system on Jan. 4, 2019.[4]

B.  The Legal Standards Were Listed With The Burkes Summary Reasons as to Why Intervention Should Be Allowed

Starting at Page 22 of the Burkes Motion to Intervene (Doc. 220), it details the legal standards. Beside each legal standard and emphasized in bold, are the Burkes responses. Ocwen Altisource make no reference to these responses in their exceedingly narrow review of the Burkes comprehensive and detailed filing(s). These standards and responses are worth repeating, as the CFPB also ignored this section in their independent response.

1.    Extract from the Burkes’ Motion to Intervene

Pursuant to Rule 24 a nonparty may intervene as of right where the nonparty “claims an interest relating to the property or transaction that is the subject of the action and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest.” Fed. R. Civ. P. 24 (a).

The non-conclusory allegations set forth in a motion to intervene are accepted as true. An applicant may intervene as of right when the applicant :

(1)     makes a timely motion; The original CFPB complaint, Doc. 1 was filed, April 20, 2017. The current latest recorded filing is dated, Dec 3, 2018, Doc. 209, an Order pertaining to discovery requests. The parties are still gathering information. The case has yet to reach trial, there is no final order. This intervention would not be prejudicial to the parties as it will not disrupt a final judgment. This motion is timely.

(2)    has an interest relating to the property or transaction that is the subject of the action; See Joanna Burke v Ocwen Loan Servicing, LLC, Case 4:18- cv-4544, District Court, Southern District of Texas, Houston Division.

(3)     is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest; Ocwens refusal to comply directly to the Burkes’ Qualified Written Request (QWR) [15] or via its unauthorized and unbonded attorneys-at-law, [16] defined by Texas law as debt collectors, will cause injury which will prevent Applicants from defending the impending foreclosure order and sale. The accounting debt claimed by Ocwen is so egregious (a $615,000 loan now stated to be a debt of nearly $1.2million dollars according to Ocwen) that there will be unjust enrichment as a result of Ocwens failure to provide detailed answers to the Applicants requests, including material matters such as accounting and proof of transfer of the loan servicing from prior mortgage servicing companies to Ocwen Loan Servicing, LLC.

[15] Whilst attorneys “representing” Ocwen claim the QWR is deficient, the Applicants maintain it is valid. This is discussed in the Motion herein.

[16] See Joanna Burke v Hopkins Law, PLLC, et al, Case 4:18-cv-4543, District Court, Southern District of Texas, Houston Division.

(4)     where the applicant’s interests are not adequately represented by the existing parties. Applicants can confirm applicants interests are not adequately represented, as detailed herein and in the Memorandum.

An alternative to “intervention as of right” is “permissive intervention,” whereby a court may permit an applicant to intervene if he makes a timely motion, he has a claim or defense, and that claim or defense shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b).

In addition, an intervenor must satisfy Article III standing requirements. To show standing, a litigant must establish that “(1) [he] has suffered an ‘injury in fact’ that is (a)          concrete and particularized; It is, see above and Memorandum. (b) actual or imminent, not conjectural or hypothetical; It is, see above and Memorandum.  (2) the injury is fairly traceable to the challenged action of the defendant; It is, see above and Memorandum. (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.” It will, see above and Memorandum.

C.   Pre-Intervention Contact With Ocwen Altisource

As noted, the Burkes did not randomly and without consideration, suddenly decide to assail as unknown parties into the lower court case.  No, they specifically and directly ‘reached out’ to Ocwen Altisource and/or their legal counsel  to no avail in their own civil actions in Texas.

Any ‘accounting’ inquiries were sent by the Burkes via mail, officially known as Qualified Written Request [“QWR”] letters – and which apparently are automatically redirected to Ocwen’s Texas counsel, namely Hopkins Law, PLLC, of Austin, Texas. This, despite the fact that in law, QWR letters have to be sent directly to the named office at Ocwen Altisource. Failure to comply with these specific instructions will result in your complaint at court being denied for non-compliance.

The Burkes also specifically and directly reached out to the CFPB prior to filing their motion to intervene, which was also to no avail (discussed in the CFPB reply and master briefs). Based on these negative responses, the Burkes elected to intervene in the lower court case in S.D. Fla between these two parties.

It should also be reasserted that Doc. 237 discusses in great depth the 4 legal standards required to intervene. This filing by the Burkes has been completely snubbed by Ocwen Altisource in their brief and in lower court responses.

D.  Deutsche Bank National Trust Company and It’s Unproven Relationship with Nonbank Ocwen Loan Servicing, LLC

To aid the court, the Burkes Texas cases warrant a summary reminder discussion in this reply brief, including a timeline of events and before the Burkes address Ocwen Altisource’s response.

The relevant lower court Texas cases are; Burke, et al. v. Ocwen Loan Servicing, LLC, No. 4: l 8-cv-4544 (S.D. Tex. 2018); Burke, et al. v. Hopkins Law, PLLC, et al., No. 4: l 8-cv-4543 (S.D. Tex. 2018) and Deutsche Bank Nat’l Trust Co. v. Burke, et al., No. 4:l l-cv-1658 (S.D. Tex. 2011).

Since the entry of judgment in favor of Deutsche Bank on Nov. 29, 2018, the Burkes stratagem was to flush out the real parties of interest by raising two civil actions, one against Ocwen and the other against Hopkins Law, PLLC and their rogue debt collecting lawyers[5], Mark and Shelley Hopkins, who now claim to represent both Deutsche Bank and Ocwen.

The decision to file against Ocwen included the following[6]; (i) the Fifth Circuit precedent and recent case confirming Deutsche Bank is not legally accountable for the actions of the mortgage servicer. Holding: If homeowners have a grievance, an independent civil action is required; (ii) The Burkes complaint included challenging Ocwen as the mortgage servicer due to lack of receipt of any formal notice of transfer of servicing rights; (iii) The Ocwen complaint complained of similar violations as listed further into this reply brief as well as the complaint in the CFPB v. Ocwen case in Florida, e.g. FDCPA and RESPA violations, Ocwen is a debt collector under the FDCPA[7], accounting errors including payments to suspense account, overcharging, charging unlawful and excessive fees etc.; (iv) In relation to accounting and unjust enrichment, this is a material complaint for the Burkes and identified in the extract above, point (3), the qualified written response (QWR) challenges. The Burkes maintain the judgment of foreclosure is clearly for $615,000 as Hopkins tried to amend the $615,000 sum of the judgment at the Fifth Circuit (#18-20026) but this motion was denied. However, the unconfirmed and disputed ‘mortgage servicer’ Ocwen and its alleged counsel and unlawful debt collectors are (post judgment) illegally harassing the Burkes, are seeking recovery of a debt amount in excess of $1.2m U.S. dollars. The Burkes sued.

In the first Order of the lower court, this was termed as ‘collection claims’[8] by the U.S. District Judge Hittner. He erroneously dismissed these collection claims for ‘res judicata’ despite the fact the Burkes were defendants in the Deutsche Bank case and res judicata does not apply. His second order dismissing the case entirely was entered on 20th March, 2019 (Doc. 29). The Burkes appealed to the 5th Circuit (Doc. 32, 18th Apr., 2019) and their case, fully briefed, is currently pending. Most reasonably, this delay at the Fifth Circuit can be attributed to the Selia Law case currently before the U.S. Supreme Court.

E.  Another Summary of the Timeline in this Appeal and the Lower Court Case (S.D. Fl.) is also Warranted, Based on the Fact Ocwen Fails to Acknowledge Key Prior Filings

The Burkes Motion to Intervene (Doc. 220, Jan. 4, 2019) and Memorandum (Doc. 220-1) was timely filed. Shockingly, the CFPB penned a joint and crudely templated objection to the Burkes’ motion (Doc. 224, Jan 14, 2019). Not only did they join with Ocwen Altisource in this motion, they went further. The Consumer Protection watchdogs authored the motion for the $3 billion dollar admonished nonbank against a consumer they claim to protect. Inexcusable. This is also fully briefed in the Burkes detailed legal response to the joint motion, namely Doc. 237, including Exhibits A-D (expanding on the 4-legal tests required to allow for intervention) as well as the master reply brief and CFPB child reply brief.

This reply covers some 45-pages, is entered on the docket on 23rd Jan., 2019 and as stated above and repeated again here, it is not even mentioned nor acknowledged by Ocwen Altisource).

V.  THE ‘BAD FAITH’ RESPONDENTS

The attorneys responsible for reviewing the Burkes initial brief, including a review of the lower court documents simply disregarded the majority of the Burkes arguments. In the Burkes experience, this occurs when these legal reviewer(s) have no valid response to the sound reasons presented and they have turned to Rambo lawyering. This included concealing evidence of the Greens case. It is now apparent, Ocwen Altisource could not address the Burkes responses for fear of further self-incrimination. So they ignored the Burkes pleadings, which is an admission in itself. The Burkes have addressed this in quite some detail in the master reply brief and the CFPB reply brief.

Anticipating the $3-billion dollar admonished nonbank (“Ocwen Altisource”)[9] would apply this standard in attacking the pro se’s brief, the Burkes circumvented this scheme by providing the court, and the parties to proceedings, with the full documented history of the case – concisely summarized inside the initial brief now before this court. Despite this, Ocwen Altisource  has patently decided to continue with their bad faith conduct strategy and based on their deplorable response have joined again with the CFPB to intentionally and willfully snub all the Burkes affirmative arguments.

VI.   CONCLUSION

See disclaimer and argument above and/or CFPB child reply brief conclusion.

DATED: April 29, 2020

[1] “The obligation to report attorney misconduct applied doubly to JUDGE ISGUR, who is NOT ONLY a JUDGE but a licensed Texas ATTORNEY.” – Commission for Lawyer Discipline v Mark A. Cantu, Supreme Court of Texas, Friday 25th October, 2019 – Judge Isgur is also the same judge in the Greens bankruptcy case and; “Since attorneys are officers of the court, their conduct, if dishonest, would constitute fraud on the court.” – H.K. Porter Co. v. Goodyear Tire Rubber Co., 536 F.2D 1115, 1119 (6th Cir. 1976).

[2] Extract from Transcript of U.S House Financial Services Committee hearing, June 25, 2015.

[3] Acting Director Mulvaney Announces Call for Evidence Regarding Consumer Financial Protection Bureau Functions; https://www.consumerfinance.gov/about-us/newsroom/acting-director-mulvaney-announces-call-evidence-regarding-consumer-financial-protection-bureau-functions/

[4] This is summarized here but there is an even more detailed breakdown and timeline in lower court  Doc. 237, Exhibit A.

[5] Jackson v. U.S. Bank , Civil Action No. 4:17-CV-2516, at *17-18  (S.D. Tex. Aug. 14, 2018)

[6] The list referenced here is not exhaustive. Please refer to the individual civil actions with detailed complaints in each of the cases as removed to federal court by Hopkins Law, PLLC in the two 2018 S.D. Tex. cases.

[7] Booze v. Ocwen Loan Servicing, LLC, Case 9:20-cv-80135-DMM, Doc. 12 (M.D. Fla., March 2, 2020)

[8] See; Burke, et al. v. Hopkins Law, PLLC, et al., No. 4:18-cv-4543 (S.D. Tex. 2018), Doc. 19, p. 7., 22nd Feb., 2019.

[9] In the initial brief, the Burkes’ cited Judge Newsom’s reference to “puffery” and disagreed with his opinion in Carvelli v. Ocwen. Now Ocwen Altisource is facing foreclosure proceedings and potential eviction from the NYSE itself for the second time in 5 years. (HW; https://www.housingwire.com/articles/ocwen-runs-afoul-of-nyse-after-stock-stays-below-1/ Fortunately for Ocwen, based on the determination of the Federalist Florida Governor and President Trump to reopen the country prematurely, this will ultimately help Ocwen Altisource repeat their egregious acts of the Financial Crisis of 2008 and earn them billions more from illegal, ‘rocket-docket’ supported foreclosures.

JOANNA BURKE

By      s/ Joanna Burke                                    

JOANNA BURKE

 

JOHN BURKE

By      s/ John Burke                               

JOHN BURKE

46 Kingwood Greens Dr.,

Kingwood, TX, 77339

Telephone: (281) 812-9591

Pro Se for Plaintiffs-Appellants

Certificate of Service

We hereby certify that, on April 29, 2020, a true and correct copy of the foregoing Brief of Appellants was served via the Court’s EM/ECF system to the attorneys of record per the CIP listing enclosed herein.

         s/ Joanna Burke                        

JOANNA BURKE

         s/ John Burke                            

JOHN BURKE

Certificate of Compliance

The undersigned counsel certifies that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font, with the exception of footnotes, which are in proportionally spaced typeface using Microsoft Word 2010 in Times New Roman 12-point font.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 2,657 words, excluding the parts exempted under Fed. R. App. P. 32(f).

         s/ Joanna Burke                        

JOANNA BURKE

         s/ John Burke                            

JOHN BURKE

MARTIN, BEVERLY, B.

WILSON, CHARLES R.

PRYOR, JILL A.

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Ocwen Altisource and Judge Kenneth Marra Guilty of Non Disclosure in an Abuse against Proposed Intervenor-Plaintiffs in Anti-Consumer Watchdog Case
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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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