LIT COMMENTARY
JULY 28, 2021
The Burkes file a motion to strike Hopkins Law’s response as the motion they are objecting to is void ab initio. Why? Because it was filed by a Fifth Circuit Clerk and not the Burkes, which is unlawful.
APPELLANTS’ MOTION TO STRIKE HOPKINS RESPONSE TO A VOID MOTION FOR RECONSIDERATION ENTERED UNLAWFULLY ONTO THE DOCKET BY FIFTH CIRCUIT CLERK CHRISTINA GARDNER
Appellants, Joanna Burke and John Burke (“Burkes”) filed their Motion to Clarify Fifth Circuit Clerk Rebecca Leto’s order of 29 Jun, backdated to 13 Apr with Proposed Sufficient Brief Uploaded. The Order stated only this Court’s Order of 30 Mar should be emailed by the Burkes to the Fifth Circuit Clerk Jann Wynne to make the Petition sufficient.
On Friday, July 9, John Burke received a call from Fifth Circuit Clerk Christina Gardner and after that call ended she entered a backdated docket entry on 8 Jul (i) mooting the Burkes Motion to Clarify (ii) Unlawfully entering an opposed Motion for Reconsideration of an order already disposed of by the 3-panel1, (iii) entered a pro_se email to send the Court Opinion in light of the Burkes informing the Court that Clerk Jann Wynne was on vacation and her email on autoresponder and (iv) Blanking Clerk Leto’s order in its entirety. These facts render the unlawful Motion for Reconsideration void, not voidable.
Hopkins objected to the clerks unlawful “Motion for Reconsideration” in a reply dated July 19, 2021. The Burkes now timely request Hopkins response be stricken and in support thereof would show the Court as follows:
[1] OPPOSED MOTION for reconsideration of the 06/21/2021 court order
denying motion for reconsideration of the 05/05/2021 order
denying motion for authorization to omit the Statement of facts requirement for their Petition for Rehearing En Banc
and
file petition in present form.
No action is taken on Appellants’ request for clarification of clerk’s office procedure as unnecessary – procedure was explained to Mr. Burke telephonically.
Appellants may use the pro_se@ca5.uscourts.gov email as an alternative, if necessary [9557920-3], [9557920-2] [9614189-2].
Response/Opposition due on 07/19/2021. Date of service: 07/08/2021 [19-20267, 20-20209]
I. BURKE’S MOTION TO STRIKE IS THE CORRECT VEHICLE TO OBJECT TO HOPKINS RESPONSE
See U.S. v. Martinez, 962 F.2d 1161, 1165-66 (5th Cir. 1992), finding “In order to preserve a claim of error for appellate review, a party must timely object or move to strike the objectionable evidence, stating the specific ground of the objection.”
II. THE REASONS FOR STRIKING HOPKINS RESPONSE IS SIMPLE, FIFTH CIRCUIT CLERK GARDNER’S ACTIONS WERE UNLAWFUL AND THE MOTION FOR RECONSIDERATION IS VOID AB INITIO
The Clerk unlawfully filed Motion for Reconsideration, rendering it void2. In any event, it makes no sense, considering Clerk Leto’s order. All this has been detailed in the Burkes Motion to Correct Opinion, filed on July 18, 2021 per the docket3.
[2] See Bass v. Hoagland, 172 F.2d 205 (5th Cir. 1949); “Concluding that default judgment was void on due process grounds where defendant filed an answer, but did not receive notice of the plaintiff’s motion for default judgment.”
Here, the Burkes were bypassed entirely by the Clerk and who proceeded to file a motion improperly in the Burkes name.
Note: The Burkes are unable to locate a case citation comparable to the Clerk’s actions, which were perplexing and extraordinary.
[3] OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 to correct opinion. [9621392-2]. Date of service: 07/18/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/18/2021 06:55 PM]
III. RELIEF REQUESTED
The Burkes civilly request this Court strike Hopkins response in its entirety as void ab initio, based on the Clerk’s unlawful acts.
Hopkins states in their response at 4;
“On July 8, 2021, the Burkes filed a Motion for Reconsideration (Motion to Clarify) of the June 21 Order. The Burkes’ July 8, 2021 Motion for Reconsideration is without merit and should be denied.”
The Burkes agree. The facts of the Motion for Reconsideration are without merit as discussed above. The Motion is unlawful and was not filed by the Burkes as required by law.
Further, Hopkins include (Motion to Clarify) as if inferring the Burkes Motion to Clarify was converted to a Motion for Reconsideration. This is not the case, as discussed above, where no action was taken on the Burkes Motion. In summary, the Clerk’s Motion for Reconsideration is void and hence Hopkins response mandates being stricken from the record.
IV. CONCLUSION
In summary, the Burkes formally request the Court strike Hopkins response in its entirety.
Respectfully submitted,
RESPONSE IN OPPOSITION TO APPELLANTS’ MOTION FOR RECONSIDERATION
Appellees Ocwen Loan Servicing, LLC (“Ocwen”), Mark Daniel Hopkins, Shelley L. Hopkins, and Hopkins Law, P.L.L.C. (“Attorney Appellees”) (collectively “Appellees”) file this their Response in Opposition to Appellants John Burke and Joanna Burke’s (the “Burkes”) Motion for Reconsideration. In support of the foregoing, Appellees would respectfully show the Court as follows:
I. Relevant Litigation History
1. This Court issued its Opinion affirming the District Court’s dismissal of the Burkes’ claims against Appellees on March 30, 2021. On April 13, 2021, the Burkes’ filed a Petition for Rehearing En Banc. On April 14, 2021, the Court notified the Burkes that the Petition was insufficient and needed to be corrected.
2. The Burkes then filed a Motion for Other Relief on April 23, 2021, requesting the Court accept the Petition as filed without the Statement of Facts or alternatively requesting an extension of time to amend the Petition and waive the paper copies requirement. On May 5, 2021, the Court ordered that the Burkes’ request to omit the Statement of Facts in the Petition was denied, the extension of time to submit a sufficient Petition was granted (until May 15, 2021), and the Burkes’ request to waive the paper copy requirement was denied as unnecessary.
3. On May 28, 2021, the Burkes filed a Motion for Reconsideration of the May 5, 2021 Order, objecting to the time frame required to submit their sufficient Petition. The Burkes then filed a Renewed Motion for Reconsideration on June 7, 2021, after which the Court notified the parties that it would take no action on the Renewed Motion as there was already a Motion for Reconsideration pending. On June 21, 2021, the Court issued an order that the Motion for Reconsideration on the Burkes’ motion for authorization to omit the Statement of Facts requirement in the Petition for Rehearing En Banc was denied.
4. On July 8, 2021, the Burkes filed a Motion for Reconsideration (Motion to Clarify) of the June 21 Order. The Burkes’ July 8, 2021 Motion for Reconsideration is without merit and should be denied.
II. Argument
5. The Burke’s Motion to Clarify seeks to re-hash matters the Court has previously addressed. As best as Appellees can decipher from the Burkes’ motion (which is not a picture of clarity), the Burkes request:
a. The Court reconsider its previous orders of May 5, 2021 and June 21, 2021 denying the Burke’s request to omit a Statement of Facts from their Petition for Rehearing En Banc; and
b. The Court grant the Burkes an extension of time to file their Petition for Rehearing En Banc despite the Court having previously extending the Burkes’ deadline to file their Petition until May 15, 2021.
6. The Burkes’ Motion fails to provide any support or reasoning for the Court to reconsider or revise any prior ruling. Likewise, the Motion fails to sufficiently articulate why the Court should, once again, extend the Burke’s deadline to file their Petition for Rehearing En Banc. In fact, the only legal concept mentioned in the Motion is the Burkes’ belief that “due process of law afforded civil litigants per the Fourteenth Amendment” requires the Court’s acquiescence to the Burkes’ Motion. The Burkes fail to articulate how their due process rights have been violated.
7. The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’ Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed. 2d 18 (1976). The first inquiry in every due-process challenge is whether the complaining party has been deprived of a protected interest in “property” or “liberty.” See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999).
8. The Burkes were given a deadline to file their Petition for Rehearing En Banc. That deadline was extended upon request. The Burkes’ ability to file a Petition was not taken away from them by the Court but rather was expanded when the Court afforded the Burkes an additional ten days to file their Petition.
9. As for requiring the Burkes to submit a Statement of Facts with their Petition, such requirement does not implicate the denial of due process. Nothing about the Court affording a litigant to provide more information to the Court (through a Statement of Facts or a Summary of the Argument) takes away a litigant’s ability to be heard in a meaningful way. Rather, the existence of briefing rules create the environment in which a litigant’s issues are best presented in clear fashion for all to consider.
10. In short, nothing about the Burkes current motion implicates due process concerns. The Burkes’ Motion is an example of their continued abuse of the judicial process with their vexatious filings. Since the Court entered its Opinion and issued Judgment, the Burkes have filed no less than ten (10) motions1 seeking various relief, each motion being without basis in law or fact. Despite the baseless nature of the Burke’s abusive motion practice, due process has been afforded the Burkes at every turn.
1 a. Petition for Rehearing En Banc – filed April 13, 2021;
b. Motion to File Petition is Present Form – filed April 23, 2021;
c. Motion to Extend Time to File Rehearing – filed May 12, 2021;
d. Motion to Reconsider – attempted to be filed May 14, 2021 but no action taking as Motion was premature;
e. Motion for Reconsideration of May 5, 2021 Order – filed May 28, 2021;
f. Motion to Stay Issuance of Mandate – filed June 28, 2021
g. Motion to Disqualify Chief Judge – filed July 3, 2021
h. Motion for Reconsideration – filed July 8, 2021
i. Motion for Sanctions – filed July 8, 2021
j. Motion to Extend Time to File Petition for Rehearing (their 3rd request) – filed July 8, 2021.
Conclusion
For the foregoing reasons, the Burkes’ Motion for Reconsideration should be denied in all things. Appellees pray for such other and further relief, at law or in equity, to which they have shown themselves to be justly entitled.
Respectfully submitted,
HOPKINS LAW, PLLC
3 Lakeway Centre Ct., Suite 110
Austin, Texas 78734
Telephone: (512) 600-4320
mark@hopkinslawtexas.com
/s/ Mark D. Hopkins
Mark D. Hopkins
Texas State Bar No. 00793975
Shelley L. Hopkins
shelley@hopkinslawtexas.com
Texas State Bar No. 24036497
ATTORNEYS FOR APPELLEES
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing Response has been delivered to all parties as shown below on this 19th day of July, 2021 to the parties listed below.
JOHN BURKE
46 Kingswood Greens Drive
Kingwood,
Texas 77339
JOANNA BURKE
46 Kingswood Greens Drive
Kingwood,
Texas 77339
/s/ Mark D. Hopkins
Mark D. Hopkins
CERTIFICATE OF COMPLIANCE
1. This response complies with the type-volume limitation of Fed R. App. P. 27(d)(2)(A) because, it contains in full 1,012 words.
2. This response 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 it has been prepared in proportionally-spaced typeface, including serifs, using Microsoft Word 2010, in Times New Roman 14-point font, except for the footnotes, which are in proportionally-spaced typeface, including serifs, using Microsoft Word 2010 in Times New Roman 12-point font.
Dated: July 19, 2021.
[9] The Burkes seek ‘non-monetary’ sanctions as pro se litigants. They civilly ask this court to refer both Mr. and Mrs. Hopkins to the State Bar of Texas for their continued and repetitive [mis]conduct and suspend these attorneys from appearing before this court for a period of one year. See; U.S. v. Garza-Espinoza, C.R. No. M-08-4986M, at *1 (S.D. Tex. Aug. 20, 2008).
Texas: The $4 Million Dollar Wrongful Foreclosure Judgment Against Deutsche Bank and PHH Ocwen
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PPP liar loans under the microscope at the Fifth Circuit, a court which has blanked the largest liar loans in American History by Banks.
Time Necessary to File Initial Brief After Yesterday’s Confirmation of Judicial Bias at 5th Circuit
In the interest of justice, widower and elder victim of financial and judicial fraudulence seeks 30 day extn of time to file initial brief.
| General Docket United States Court of Appeals for the Fifth Circuit |
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| Joanna Burke; John Burke,
Plaintiffs – Appellants v. Ocwen Loan Servicing, L.L.C., Defendant – Appellee consolidated with No. 20-20209 Joanna Burke; John Burke, Plaintiffs – Appellants v. Mark Daniel Hopkins; Shelley Hopkins; Hopkins Law, P.L.L.C., Defendants – Appellees |
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| _____________
No. 19-20267 Joanna Burke; John Burke, Plaintiffs – Appellants v. Ocwen Loan Servicing, L.L.C., Defendant – Appellee consolidated with No. 20-20209 Joanna Burke; John Burke, Plaintiffs – Appellants v. Mark Daniel Hopkins; Shelley Hopkins; Hopkins Law, P.L.L.C., Defendants – Appellees |
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| Joanna Burke; John Burke,
Plaintiffs – Appellants v. Ocwen Loan Servicing, L.L.C., Defendant – Appellee consolidated with No. 20-20209 Joanna Burke; John Burke, Plaintiffs – Appellants v. Mark Daniel Hopkins; Shelley Hopkins; Hopkins Law, P.L.L.C., Defendants – Appellees |
| 07/01/2021 |  29 pg, 1.43 MB |
DOCUMENT RECEIVED – NO ACTION TAKEN. No action will be taken at this time on the Appellants’ Motion to Disqualify Chief Judge Owen received from Appellant Mr. John Burke in 19-20267, 20-20209 because wrong filing event used [19-20267, 20-20209] (SDH) [Entered: 07/02/2021 01:56 PM] |
| 07/03/2021 | 28 pg, 1.35 MB |
OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 to disqualify Court of Appeals Judge Priscilla Owen from the case. [9611750-2]. Date of service: 07/03/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/03/2021 06:44 AM] |
| 07/07/2021 | 3 pg, 147.97 KB |
COURT ORDER FILED that Appellants’ opposed motion to disqualify Chief Judge Priscilla R. Owen is DENIED. [9611750-2] [19-20267, 20-20209] (DMS) [Entered: 07/07/2021 02:40 PM] |
| 07/08/2021 | 7 pg, 200.42 KB |
OPPOSED MOTION for reconsideration of the 06/21/2021 court order denying motion for reconsideration of the 05/05/2021 order denying motion for authorization to omit the Statement of facts requirement for their Petition for Rehearing En Banc and file petition in present form. No action is taken on Appellants’ request for clarification of clerk’s office procedure as unnecessary – procedure was explained to Mr. Burke telephonically. Appellants may use the pro_se@ca5.uscourts.gov email as an alternative, if necessary [9557920-3], [9557920-2] [9614189-2]. Response/Opposition due on 07/19/2021. Date of service: 07/08/2021 [19-20267, 20-20209] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: OPPOSED MOTION for clarification of the Order dated 06/21/2021 denying Motion for reconsideration filed by Appellants Ms. Joanna Burke and Mr. John Burke in 19-20267, 20-20209 [9585172-2]. Response/Opposition due on 07/19/2021. [19-20267, 20-20209] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 for clarification of the Order dated 06/29/2021. Date of service: 07/08/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/08/2021 10:02 AM] |
| 07/08/2021 | 9 pg, 259.83 KB |
OPPOSED MOTION for sanctions against Mark Daniel Hopkins and Shelley Luan Hopkins. Response/Opposition due on 07/19/2021. [19-20267, 20-20209] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 for sanctions against Mark Daniel Hopkins and Shelley Luan Hopkins. Date of service: 07/08/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/08/2021 08:29 PM] |
| 07/08/2021 | 6 pg, 229.63 KB |
OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 to extend the time to file a rehearing until 07/23/2021 [9615010-2]. Date of service: 07/08/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/08/2021 08:37 PM] |
| 07/18/2021 | 24 pg, 407.13 KB |
OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 to correct opinion. [9621392-2]. Date of service: 07/18/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/18/2021 06:55 PM] |
| 07/19/2021 | 7 pg, 233.92 KB |
DOCUMENT RECEIVED – NO ACTION TAKEN. No action will be taken at this time on the motion for reconsideration received from Appellants Ms. Joanna Burke and Mr. John Burke in 19-20267 because there is no recourse for reconsideration of a denial of motion to recuse or disqualify a Judge. [19-20267, 20-20209] (CAG) [Entered: 07/19/2021 12:57 PM] |
| 07/19/2021 | 15 pg, 509.18 KB |
RESPONSE/OPPOSITION [9622148-1] to the Motion for sanctions in 19-20267, 20-20209 [9615009-2]. Date of Service: 07/19/2021. [19-20267, 20-20209] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: RESPONSE/OPPOSITION filed by Ocwen Loan Servicing, L.L.C. in 19-20267, Hopkins Law, P.L.L.C., Mr. Mark D. Hopkins and Ms. Shelley Hopkins in 20-20209 [9622148-1] to the Motion filed by Appellant Mr. John Burke in 19-20267, 20-20209 [9615009-2] Date of Service: 07/19/2021 via email – Appellants Burke, Burke; Attorney for Appellees: Hopkins, Hopkins; US mail – Appellant Burke. [19-20267, 20-20209] (Mark D. Hopkins ) [Entered: 07/19/2021 03:44 PM] |
| 07/19/2021 | 9 pg, 202.23 KB |
RESPONSE/OPPOSITION [9622209-1] to the Motion for reconsideration in 19-20267, 20-20209 [9614189-2] Date of Service: 07/19/2021. [19-20267, 20-20209] REVIEWED AND/OR EDITED – The original text prior to review appeared as follows: RESPONSE/OPPOSITION filed by Ocwen Loan Servicing, L.L.C. in 19-20267, Hopkins Law, P.L.L.C., Mr. Mark D. Hopkins and Ms. Shelley Hopkins in 20-20209 [9622209-1] to the Motion for reconsideration filed by Appellant Mr. John Burke in 19-20267, 20-20209 [9614189-2] Date of Service: 07/19/2021 via email – Appellants Burke, Burke; Attorney for Appellees: Hopkins, Hopkins; US mail – Appellant Burke. [19-20267, 20-20209] (Mark D. Hopkins ) [Entered: 07/19/2021 04:12 PM] |
| 07/28/2021 | 25 pg, 771.32 KB |
OPPOSED MOTION filed by Appellant Mr. John Burke in 19-20267, 20-20209 to strike Response/Opposition filed by Appellee Ocwen Loan Servicing, L.L.C. in 19-20267, Appellees Hopkins Law, P.L.L.C., Mr. Mark D. Hopkins and Ms. Shelley Hopkins in 20-20209 [9622148-2] [9629458-2], for sanctions against MARK HOPKINS, SHELLEY HOPKINS. Date of service: 07/28/2021 via US mail – Appellant Burke; email – Appellant Burke; Attorney for Appellees: Hopkins, Hopkins [19-20267, 20-20209] (John Burke ) [Entered: 07/28/2021 12:40 PM] |
