Operation Elder Abuse: 22 Years Later It’s Time for Peaceful Possession and Quiet Title to Her Homestead

Logging onto LIT after 10-day outage which ended at 5.25pm cst on July 16, 2024, and updating cases accordingly.

TO THE UNASSIGNED HONORABLE UNITED STATES DISTRICT COURT JUDGE AND ALL INTERESTED PARTIES:

Joanna Burke hereby submits her emergency motion to remand without waiver of her constitutional and legal rights to supplement her argument, authorities, request for punitive damages and/or for any other relief sought.

This emergency motion to remand is provided in accordance with applicable state, federal and bankruptcy court rules and regulations.

EMERGENCY MOTION: THE FACTS

On March 13, 2024, Mark Daniel Hopkins and Shelley Hopkins of Hopkins Law, PLLC, purportedly acting solely on behalf of  PHH Mortgage Corporation did violate federal laws by fraudulently, maliciously and willfully removing the state court action as detailed on the docket and in pleadings and exhibits attached and incorporated.

In response, Joanna Burke seeks emergency relief: an order granting immediate remand to the state court and case style identified, without delay. In support of this request, Plaintiff presents the following argument and legal authority.

MEMORANDUM AND BRIEF IN SUPPORT

Argument and Legal Authority in Support of Emergency Remand

Despite 16 pages of rambling, baseless and frivolous discussion as to why they can continue to harass the Plaintiff and violate Texas and Federal laws, PHH and their fellow Defendants, Hopkins admit in their notice of removal at 9 and 9 a., (p.4 of 16, doc. 1), and continue at A. and 10. (p.5 of 16, doc. 1) that Joanna Burke filed for Bankruptcy on March 1, 2024.

The Controlling Question

The only question this court need consider in order to expeditiously grant remand is:

Whether or not the 30-day automatic stay was in effect at the date and time of removal.

The answer is irrefutably: Yes, the stay was in effect.

Terminally, no relief from stay was obtained prior to removal.

As such, relying upon Fifth Circuit precedential case law, remand is mandatory.

See; In re Phillips, 124 B.R. 712, 716 n.7 (Bankr. W.D. Tex. 1991)

(“the FDIC violated the automatic stay established by the bankruptcy filing when it removed the state collection and foreclosure action to federal court post-petition without relief from stay.

See 11 U.S.C. § 362(a)(1); R.Bankr.P. 9027(a)(2).

The Fifth Circuit has held that such violation is voidable, i.e., that the notice should be dissolved and the case remanded to state court.

Sikes v. Global Marine, Inc., 881 F.2d 176, 178 (5th Cir. 1989). ”).

Phillips and Sikes are supported by Chapman v. Bituminous Insurance, 345 F.3d 338 (5th Cir. 2003), where the appellate court reached another important question, and which should be included here to avoid any further frivolous argument from PHH and Hopkins.

Namely, any “argument that only the bankruptcy court can make this voidness determination is unpersuasive”, at 345 n.24;

(We have previously noted that “other [federal] district courts retain jurisdiction to determine the applicability of the stay to litigation before them, and to enter orders not inconsistent with the terms of the stay.”

Picco v. Global Marine Drilling Co.,900 F.2d 846, 850 (5th Cir. 1990);

see also Siskin v. Complete Aircraft Servs. (In re Siskin),258 B.R. 554, 561-64 (Bankr.E.D.N.Y. 2001)

(noting that the majority of jurisdictions have held that state courts have concurrent jurisdiction to decide whether the bankruptcy stay applies to pre-petition state court actions)).

All other reasons provided by PHH and Hopkins are mooted by the above question and legal authority in support of remand.

CONCLUSION

The Plaintiff’s Emergency Motion to Remand is mandatory, should be granted immediately by order of the court,  and without further delay. Plaintiff respectfully requests any and all other relief the court deems appropriate and just in light of the egregious acts of retaliation perpetrated by PHH and Hopkins against the Plaintiff, by attempting to delay and/or sabotage her state lawsuit, including Joanna Burke’s state constitutionally protected rights as pertaining to a fundamental liberty interest: her homestead;

“Those established homestead rights are subject to rigid protections.

Pierce v. Washington Mut. Bank, 226 S.W.3d 711, 717 (Tex. App. — Tyler 2007, pet. denied)

[“Homestead protection is a treasured liberty in Texas, which has been encrusted in its constitution since 1839”]. ”

In re McKeithan, No. 10-60825, at *6 (Bankr. E.D. Tex. Apr. 7, 2011).

RESPECTFULLY submitted this 13th day of March, 2024.

CERTIFICATE OF CONFERENCE

I did not confer with PHH Mortgage Corporation and their counsel, Mark Hopkins, Shelley Hopkins of Hopkins Law, PLLC due to my allegations in ongoing litigation pertaining to this court.

This decision was not taken lightly and relies upon the following opinion, Melvin v. Rimkus Consulting, Case 4:08-cv-02707, Document 10, Filed in TXSD on 10/07/08,

and visible online at; https://www.govinfo.gov/content/pkg/USCOURTS-txsd-4_08-cv-02707/pdf/USCOURTS-txsd-4_08-cv-02707-0.pdf

(last visited March 13, 2024).

The opinion by United States District Court Judge Gray Miller, Houston division, states in relevant part;

“Rimkus also urges the court to consider that Melvin’s counsel failed to confer with opposing counsel as required by this court’s procedures prior to filing the motion to remand and failed to attach a certificate of conference as required by the local rules.

Additionally, Rimkus stresses its belief that Melvin’s complaint is without merit.

Neither of these arguments go to the objective reasonableness of the removal. Therefore, the court will not address them.

Last, Rimkus argues that federal question jurisdiction will be implicated in this case eventually. The court declines to theorize on the prospect of future jurisdiction, because it does not impact the present lack of jurisdiction.

Accordingly, the motion to remand is GRANTED. Under 28 U.S.C. § 1447(d), this case is REMANDED to the 333rd District Court of Harris County, Texas.”

For updates, visit non-prisoner.com where the full case and appeal information is documented. At the time of this posting, CA8 has converted the motion for an extension of time to rehearing en banc.

Plaintiff  Joanna Burke, individually, files this motion for partial summary judgment against Defendants by submission. See; L.R. 3.3.3.

SUMMARY JUDGMENT FACTS

The facts are  simple and clear. First, judicial notice of Joanna’s operative complaint pleadings and exhibits relative to her quiet title claim should be included herein for the purposes of this motion.

Legal Description: Quiet Title

The principal issue in a suit to quiet title is the existence of a cloud on the title that equity will remove.

Mortg. Elec. Registration Sys., Inc. v. Groves, No. 14-10-00090-CV, 2011 WL 1364070, at *3 (Tex. App.—Houston [14th Dist.] Apr. 12, 2011, pet. denied) (mem. op.).

A “cloud” on legal title includes any deed, contract, judgment lien or other instrument, not void on its face that purports to convey an interest in or makes any charge upon the land of the true owner, the invalidity of which requires proof.

The term “suit to quiet title” is used to describe legal disputes regarding (1) title to and possession of real property; and (2) the validity of other “clouds” on an undisputed owner’s title to real property.

The first type of claim Joanna pleaded in her petition is essentially a trespass-to-try-title action.

An action for trespass to try title is used to determine title to lands, tenements, or other real property, to clear problems in chains of title, or to recover possession of land unlawfully withheld from a rightful owner. Groves, 2011 WL 1364070, at *3.

Absent a boundary dispute, a trespass-to-try-title claim is the exclusive remedy by which to resolve competing claims to property.

Tex. Prop. Code § 22.001(a); MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 n. 48 (Tex. 2009); Jordan v. Bustamante, 158 S.W.3d 29, 34 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

The second type of claim Joanna pleaded in her petition challenges an adverse interest that indirectly impacts title and possession. Groves, 2011 WL 1364070, at *3.

“A claim is sufficiently adverse if its assertion would cast a cloud on the owner’s enjoyment of the property.”

The affected owner must allege his right, title, or ownership with sufficient certainty to warrant judicial interference.

The underlying nature of Plaintiff’s action is not altered by any request for declaratory relief.

See Parker v. Hunegnaw, 364 S.W.3d 398, 401-02 (Tex. App.—Houston [14th Dist.] 2012, no pet.).

Evaluation is based on the nature of the dispute, despite any pleadings for a declaratory-judgment action.

Background, Argument and Legal Authorities

Joanna has maintained uninterrupted possession of her homestead since December 31, 2001 and is entitled to quiet title and peaceful possession under Texas law.

After the devastating financial crisis left millions of homeowners across the nation in turmoil, Deutsche Bank made a brazen move in 2011, dragging Joanna into federal court in an attempt to seize her home through foreclosure.

But this so-called mortgage was nothing more than a predatory loan from a defunct lender—a legal nullity.

In a remarkable display of resilience, Joanna stood her ground and defeated Deutsche Bank not once, but twice.

First, in a hard-fought bench trial in 2015, and again in late 2017 following an appeal.

That’s right—twice Joanna Burke, alongside her late husband, thwarted Deutsche Bank’s relentless pursuit in federal court.

Yet, despite 22 years of unwavering residency in her retirement haven, these remorseless financial institutions, aided by their foreclosure mill counsel, persist in their heartless pursuit of an 85-year-old widow.

The harassment continues unabated, a stark reminder of the ongoing plight faced by those victimized by the financial crisis.

Both former Magistrate Judge Stephen W. Smith and former Beck Redden Partner and counsel for the Burke’s Constance ‘Connie’ Pfeiffer (on remand) agreed on the record this court’s opinion was a manifest injustice to the Burkes’:-

“That’s correct, Your Honor. And I DO want to make an important clarification, which is WE DON’T necessarily AGREE that the FIFTH CIRCUIT was correct in REVERSING this Court’s judgment.”

(Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, Doc. 126 (S.D. Tex. Feb 26, 2017)).

The Fifth Circuit misapplied over 200 years of precedential laws and opinions pertaining to property law when reversing the Burke’s victory at a bench trial against (‘straw man’) Deutsche Bank National Trust Company.

Indeed, former Magistrate Judge Smith ruled not once, but twice in favor of the Burkes, his last opinion stated in finality in Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, at *13 (S.D. Tex. Dec. 21, 2017).

“Accordingly, the court concludes that neither Deutsche Bank nor any mortgage servicer acting on its behalf has the right to foreclose on the Burkes’ Kingwood residence. The court further concludes that at no time has Deutsche Bank possessed any right, title, or interest in the Burkes’ note and security interest executed on May 21, 2007.”.

However, relying upon an erroneous erie guess, and in violation of the rule of law and orderliness, the Fifth Circuit refused to apply binding Texas laws.

See; Judge Gregg Costa, 5^th Circuit in Priester v. Deutsche Bank , No. 19-40158, at *3 (5th Cir. Oct. 9, 2020)

“Making an Erie guess, we concluded that the Priesters’ constitutional claim was barred by the statute of limitations.

Priester v. JP Morgan Chase Bank, N.A., 708 F.3d 667, 674 (5th Cir. 2013).

Three years later—as, regrettably, sometimes happens—our guess turned out to be wrong when the Supreme Court of Texas interpreted Texas law differently and declined to apply the limitation period to the constitutional provision.

Wood v. HSBC Bank USA, N.A., 505 S.W.3d 542, 547 (Tex. 2016); see also Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 600 (5th Cir. 2017)

(noting that “Wood made plain that our ‘Erie guess’ in Priester was wrong”).”

The first opinion by the Fifth Circuit in the Priester case was rejected after oral argument and briefing at the Texas Supreme Court, a decision that was significantly influenced by Texas lawyer Constance Pfeiffer in the landmark Wood case cited above.

It’s crucial for this court to acknowledge that Ms. Pfeiffer served as counsel for Joanna Burke during the remand in her federal case.

Therefore, Ms. Pfeiffer’s legal assessment and critique of the appellate court in the transcript on remand from the Fifth Circuit in 2017 before Judge Smith and Mark Hopkins at the oral hearing in S.D. Texas Federal Court carry exceptional weight.

Her argument was further bolstered by other esteemed legal experts, including Steve Berman of Hagens Berman, who represented Joanna upon return to the Fifth Circuit.

In summary, Ms. Pfeiffer’s opinion holds significant authority and should be regarded as equally binding, as evidenced in the cited transcript (Doc. 126);

Ultimately, the Fifth Circuit declined to hear oral arguments upon the case’s return to their court. Furthermore, the three-panel judges refused to seek assistance from the Texas Supreme Court in determining Texas law.

This decision was pivotal, as it concerned a fundamental liberty interest—the protection of a homestead—and directly contradicted the panel’s speculative interpretation, an erie guess.

Regrettably, their legally flawed opinion would lead to a deficient and void order permitting foreclosure, as issued by the lower court on November 29, 2018.

In support of Texas law – and firmly rejecting federal interpretation – the appeals court in the PNC case discussed herein was left unimpressed by prior federal court opinions, stating:-

“We do not agree with this reading of our opinion.”;

“We view the potential problems created by these [4 federal court] holdings as manifold.”;

“We affirm the trial court’s judgment declaring any lien or power of sale held by PNC on the Howards’ property void and unenforceable.”

– notably, a case where Mark Hopkins and Shelley Hopkins are counsel of record;

PNC Mortg. v. Howard, 651 S.W.3d 154 (Tex. App. 2021).

Since that date and relying upon Defendants  belief they have a valid and enforceable order of foreclosure (a view not shared by Joanna), Defendants have failed to act within the statutory time allowed – four years – thus barring their recent attempts to illegally foreclosure on Plaintiff’s home.

See; PNC Mortg. v. Howard, 668 S.W.3d 644, 647 n.7 (Tex. 2023) (“See Tex. Civ. Prac. & Rem. Code § 16.035(a):-

“A person must bring suit for the recovery of real property under a real property lien or the foreclosure of a real property lien not later than four years after the day the cause of action accrues.”).”.  

Here, Deutsche Bank’s cause of action accrued the date they received the judgment of foreclosure they sought, which was on Nov. 29, 2018.

In short, they (i) did not bring suit within the intervening 4-year timeline, and; (ii) it is clear that they did not auction, sell, evict and/or obtain title to Plaintiff’s homestead during that time period either (a failure to recover the real property).

See; Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 567 (Tex. 2001):-

“Under state law, a sale of real property under a power of sale in a mortgage or deed of trust that creates a real-property lien must be made not later than four years after the day the cause of action accrues.

 Tex. Civ. Prac. Rem. Code § 16.035(b); McLemore v. Pacific Southwest Bank, 872 S.W.2d 286, 292 (Tex.App.-Texarkana 1994, writ dism’d by agr.).

When this four-year period expires, the real-property lien and the power of sale to enforce the lien become void. Tex. Civ. Prac. Rem. Code § 16.035(d).

This four-year limitations period can be suspended by filing a written agreement in the county clerk’s office where the real property is located.

Tex. Civ. Prac. Rem. Code § 16.036.”.

Having perused the real property records, no such filing exists pertaining to Joanna’s homestead. As such, both the lien and the power of sale are void.

It is worth noting counsel Mark Hopkins has arrived in these proceedings for Defendants.

He was on the losing side (PNC Bank) of this recent Texas Supreme Court decision favoring the homeowners, the Howards’, and where the Court chided their baseless and frivolous arguments during oral argument, and where Mark Hopkins was present.

That stated, Mark and Shelley Hopkins of Hopkins Law PLLC, as known and admitted counsel for PHH Mortgage Corporation and Deutsche Bank National Trust Company have already indicated in their first response they will present baseless, frivolous, and  fraudulent arguments in opposition.

This court should reject the same, based on binding precedent from Texas highest court and relying upon distinguished Texas laws.

Indeed, Mark Hopkins admits in the federal court transcript Doc. 126 above (on remand from the 5^th Cir.), that he knowingly withheld the servicer’s mortgage file from the Burkes.

This is because he knew the file did not support his untruthful and fraudulent legal pleadings and arguments.

Given Deutsche Bank’s failure to act within the statutory time limit and their baseless arguments, Joanna seeks finality and relief from the court.

She urges the court to reject any further harassment or attempts to illegally sell or evict her from her home of over two decades.

In support, Joanna expands on her factual argument below:-

Accrual

Under its terms, the purported note would mature in June 2037, the month the last installment was due.

See; Tex. Civ. Prac. Rem. Code § 16.035(e).

However, as stated in Joanna’s operative petition, Onewest Bank FSB’s letter dated Feb. 10, 2011 allegedly accelerated this maturity date.

Abandonment

Abandonment is not implicated in this case.

Joanna has presented conclusive evidence that Onewest Bank, FSB accelerated the note on Feb 10, 2011.

As such, any cause of action on the note accrued on that date and that limitations then began to run.

See; NSL Prop. Holdings, LLC v. Nationstar Mortg., LLC, No. 02-16-00397-CV, at *14 (Tex. App. Aug. 17, 2017):-

“the January 2010 letter—which is replete with language inconsistent with the then-present right to foreclose—compels the conclusion that the lender abandoned the acceleration.”.

Here, the opposite is true.

Onewest Bank FSB’s 2011 letter  is replete with language consistent with the then-present right to foreclose, compelling the conclusion that acceleration occurred and abandonment is not implicated in this case.

Acceleration

Section 51.002 establishes the procedures for conducting a foreclosure sale. Joanna’s summary judgment evidence conclusively establishes the note’s acceleration date.

As there is no other contrary agreement between the parties, a clear and unequivocal notice of intent to accelerate and a notice of acceleration is enough to conclusively establish acceleration.

Therefore, Joanna’s evidence conclusively established the date its purported note was accelerated and thus the date of Deutsche Bank’s cause of action accrued.

Further, as the cause of action accrued after the FDIC had purportedly sold Indymac Federal Bank, FSB to Onewest Bank, FSB on March 19, 2009, and then purportedly MERS assigned it to Onewest Bank, FSB, on Jan. 20, 2011, the Texas four-year statute of limitation is applicable to foreclosure actions which govern this case.

See; Deutsche Bank Nat’l Tr. Co. v. Burke, CIVIL ACTION NO: H-11-1658, Doc. 133 p.4-6 (S.D. Tex. Dec 21, 2017);  Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 569, 574 (Tex. 2001).

CONCLUSION

In conclusion, based on the overwhelming evidence and legal authority presented, Joanna Burke’s request for relief should be granted, bringing an end to her prolonged ordeal with Deutsche Bank and Defendants.

VERIFICATION, PRAYER & RELIEF

In closing, I, Joanna Burke, as Plaintiff with due authority and competency, resident of Kingwood in the livable forest of Harris County, Texas, born on November 25, 1938 (85 years old), in Kirkintilloch, Scotland, United Kingdom, and currently holding U.S. Citizenship, a valid State of Texas Driver License (last 3 digits are 738), and a Social Security Card (last 3 digits are 874), do solemnly declare under penalty of perjury that the foregoing statements are true and correct. This verified declaration, made under Chapter 132, Civil Practice and Remedies Code, holds significant weight in legal precedent, as evident in ACI Design Build Contractors Inc. v. Loadholt, 605 S.W.3d 515, 518 (Tex. App. 2020), McMahan v. Izen, No. 01-20-00233-CV, at *15-17 (Tex. App. Sep. 2, 2021), and In re Whitfield, No. 03-21-00170-CR, at *1 n.1 (Tex. App. Nov. 10, 2021).

JUDGMENT

Accordingly, plaintiff Joanna Burke respectfully requests that she receives judgment in her favor, and other relief requested above, that she recovers recover costs as allowed by this court and in law, and that Joanna Burke have and recover all other and further relief to which she may be entitled under Texas laws.

RESPECTFULLY submitted this 9th day of March, 2024.