Wild West Hired Guns Misfire: PHH ONITY’s Cooked-Up n’ Cockamamie Arguments Implode

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

Disclaimer by Plaintiff – Reservation of Rights

As the docket is currently a shambles – due to delivered mail from the Plaintiff not being docketed or docketed timely – this response is subject to reservation of all rights as necessary.

Plaintiff is extremely concerned that Defendants latest frivolous response was triggered by the 14-day late docketing of only one of a series of Plaintiff’s combined pleadings, sent to the court by USPS Express Mail and delivered and signed for on Nov. 21, 2024.

It remains unknown and undisclosed by the court as to how Doc. 45 (Motion for Leave to File SurReply with Proposed Order) became separated for such an extended period, as well as the entire contents of Plaintiff’s other large mailing via USPS Express Mail package, delivered and signed for on Nov. 15, 2024.

DEFENDANTS CONTINUE TO CHERRY-PICK CONTENT, RULES AND LAWS

After several opposed extension requests by PHH Hopkins, which were granted on Oct 16 (Doc. 37) and Oct 23 (Doc. 39) by this court and in defiance of its own court order (Doc. 31, Sep. 18, 2024) which demanded strict deadlines to prevent further delays to “thwart foreclosure”, in the latest response by Defendants and their Counsel they request the following relief (at 5.):

“The Court should deny Burke’s Motion for Leave and strike Burke’s Sur-Reply.”

The Defendants have not supported this request by filing a Motion to Strike, which is the correct vehicle to request such legal relief.

See; LR11.4 “Sanctions. A paper that does not conform to the local or federal rules or that is otherwise objectionable may be struck on the motion of a party or by the Court.” (emphasis added).

Responding specifically to the Plaintiff’s Motion for Leave to File, the Defendants claim their Motion for Summary Judgment complied with the court briefing requirements by stating

“Judge Ewing Werlein, Jr.’s procedures limit the briefing to twenty-five (25) pages. See Judge Ewing Werlein, Jr.’s procedures at 4. PHH’s Motion for Summary Judgment complies with the page limit requirement.” They also admit in their response (at 1.): “On August 5, 2024, PHH filed its Motion for Summary Judgment. [Doc. 27].”

However, on July 11, 2024, the docket reflects at No. 24:

“RECUSAL ORDER. Judge Ewing Werlein, Jr recused. Deadlines in scheduling orders subsist. Court settings are vacated”;

July 11, No. 25:

“NOTICE of Reassignment. Case reassigned to Judge Charles Eskridge. Judge Ewing Werlein, Jr no longer assigned to the case. Parties notified.”.

When PHH Hopkins submitted their Motion for Summary Judgment on Aug. 5, 2024, the case was no longer assigned to Judge Werlein, Jr.

As such, their argument fails for the reason provided in Plaintiff’s Motion for Leave to File, in part;

“See Court Procedures, Hon. Charles R. Eskridge III, at 18c”.

Judge Eskridge procedures are clear, the word-count limit is 5,000 and pleadings are to be double-spaced. Neither of these requirements were followed by Defendants and their Counsel.

Furthermore, they did not “Provide a certificate of word count following the signature block.”.

Additionally, Defendants include footnotes and specifically rely upon legal argument as a footnote (Doc. 27, footnote no. 3, p.14), discounted and disavowed at Court Procedure 18(d).

Moreover, as Plaintiff’s admit, their Motion is in excess of 10-pages and requires compliance with Court Procedure 18(e), including but not limited to:

“A separate cover sheet for the case caption and title of the filing; A table of contents setting forth page numbers of all sections and point headings; A table of authorities organizing in categories and arranging alphabetically all cited cases, statutes, rules, textbooks, and other authorities…”

which Defendants failed to do.

The Defendants Motion for Summary Judgment does not comply with the court’s procedures.

Also, No. 3 of their response Defendants incorrectly suggest (in relevant part);

“Plaintiff suggests her desire to amend is based solely on the purported word count” (emphasis added).

This is also false.

A review of Plaintiff’s Motion for Leave states categorically:

“The surreply is necessary to address arguments raised for the first time in Defendant’s latest filing, which have not been previously discussed and are critical to the resolution of this matter.”.

No. 4 of Defendants response requires quoting in full:

“4. A sur-reply is typically reserved for the unique circumstance in which new arguments are raised. However, a brief review of PHH’s Motion for Summary Judgment and Burke’s Reply clearly reveals that the only “new” argument is the one by Burke in attempting to defeat summary judgment. PHH was permitted, in its reply, to address her newly raised defense to summary judgment. No other purportedly new issues were briefed and there is clearly no reason to grant Burke permission to file a sur-reply.”

Per Court Procedure 18(e), Defendants vague and conclusory statements do not provide “An argument devoted to relevant, persuasive legal authority.”.

Defendants’ vague argument attempt at reversing the position presented by Plaintiff is unavailing.

The Plaintiff’s “live” complaint in the state court included argument that the Defendants failed to address in their Motion for Summary Judgment.

As a result, when the Plaintiff responded (Doc. 35, Oct 7, 2024), she restated the missing arguments as material to her complaint.

It was not until then that the Defendants even attempted to address the Plaintiff’s Third Amended (operative or “live”) Complaint and Motion for Partial Summary Judgment.

This would only be achieved after asking the court for an opposed extension of time to do so, which was granted.

Finally, Defendants submitted their reply on Nov. 4, 2024, (Doc. 40).

The Plaintiff’s argument is no different than the argument presented in the fully briefed Mitchell v. Tex. Farm Bureau, Civil Action H-20-3716 (S.D. Tex. May 26, 2022) before Judge Rosenthal, who denied striking the surreply in that case.

Indeed, a review of the briefing and reply by Mitchell in Doc 44, (Mar 8, 2022) aligns with the procedural issues discussed herein.

There, Mitchell (Plaintiff) cites to Fast Capital Marketing, LLC v. Fast Capital LLC, 2008 WL 5381309, *1 n.1 (S.D. Tex., Dec. 24, 2008) (Rosenthal, J.)

(denying motion to strike surreply, noting in particular the movant’s acknowledgment “that neither the Federal Rules of Civil Procedure nor this district’s local rules expressly require leave to file a surreply” and also noting that the surreply’s filer did not sandbag Goldman Sachs, delay presenting evidence via the surreply, or deny Goldman Sachs an opportunity to respond).

Mitchell goes further, citing:

“Symetra Life Ins. Co. v. National Ass’n of Settlement Purchaser, 2012 WL 5880799, *3 (S.D. Tex., Nov. 12, 2012) (Rosenthal, J.), aff’d in part and rev’d in part on other grounds, Symetra Life Ins. Co. v. Rapid Settlements, Ltd., 775 F.3d 242 (5th Cir. 2014),

this Court referenced a colloquy from the bench to the effect that it was obvious that a party called Rapid “will get a chance to respond with a brief surreply.”

– stating:

“In short, the idea that surreply briefs are verboten absent express permission from the Court is just not correct.”.

Plaintiff recognized that right or wrong, this differed from Judge Eskridge’s own court procedures – which do require leave to file – and Plaintiff duly complied.

That stated, Defendants have had an opportunity to respond to the surreply, however, their arguments are without legal merit.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. §1746.”, I hereby provide my unsworn declaration.

My name is Joanna …, and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

For the reasons outlined above, the Plaintiff requests that the Court reject the Defendants’ surreply response and Motion for Summary Judgment.

The Plaintiff respectfully requests that the Court reject Defendants’ arguments and motion in its entirety as legally baseless.

To the extent this court maintains the opinion it has jurisdiction in these proceedings, the Motion for Summary Judgment should be DENIED, and for any and all other relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 18th day of December, 2024.

PHH Mortgage Corporation (“PHH”) files this its Response in Opposition to Plaintiff Joanna Burke’s (“Burke” or “Plaintiff”) Motion for Leave [Doc. 45] to file her amended sur-reply to PHH’s Motion for Summary Judgment [Doc. 27].

In support thereof, PHH would respectfully show unto the Court the following:

1.                  On August 5, 2024, PHH filed its Motion for Summary Judgment. [Doc. 27].

2.                  After several extension requests, Burke filed her response to PHH’s Motion for Summary Judgment on October 7, 2024. [Doc. 35].

On November 4, 2024, PHH filed its Reply to Plaintiff’s Response to Motion for Summary Judgment. [Doc. 40].

3.                  Despite this having zero impact on the substance of the motion, the response, or the reply, Plaintiff suggests her desire to amend is based solely on the purported word count of PHH’s Motion for Summary Judgment being in violation of federal and local court rules.

However, Burke does not point to anywhere in the federal or local rules requiring same.

Burke is mistaken.

Judge Ewing Werlein, Jr.’s procedures limit the briefing to twenty-five (25) pages.

See Judge Ewing Werlein, Jr.’s procedures at 4.

PHH’s Motion for Summary Judgment complies with the page limit requirement.

4.                  A sur-reply is typically reserved for the unique circumstance in which new arguments are raised.

However, a brief review of PHH’s Motion for Summary Judgment and Burke’s Reply clearly reveals that the only “new” argument is the one by Burke in attempting to defeat summary judgment.

PHH was permitted, in its reply, to address her newly raised defense to summary judgment.

No other purportedly new issues were briefed and there is clearly no reason to grant Burke permission to file a sur-reply.

5.                  As previously stated, Burke continues to abuse the court system by seeking delay at every turn.

This motion for leave and the sur-reply are just another tool being utilized for further delay.

The Court should deny Burke’s Motion for Leave and strike Burke’s Sur-Reply.

[Doc. 44].

Pursuant to the reasons set out herein, PHH prays that the Court deny Plaintiff’s Motion for Leave and grant PHH the relief requested in its Motion for Summary Judgment and for such other relief at law or in equity, to which it has shown itself to be justly entitled.

Respectfully submitted,

By:      /s/ Mark D. Hopkins

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

Shelley L. Hopkins
State Bar No. 24036497
Southern District ID No. 926469

HOPKINS LAW, PLLC
2802 Flintrock Trace, Suite B103
Austin, Texas 78738
(512) 600-4320
mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com

Counsel for
PHH Mortgage Corporation

CERTIFICATE OF SERVICE

I hereby certify that pursuant to the Federal Rules of Civil Procedure, on the 16th day of December 2024, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF filing system and served true and correct copy to the following by the method indicated below:

VIA EMAIL AND VIA REGULAR MAIL

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

/s/ Mark D. Hopkins
Mark D. Hopkins