The Plaintiff is Supported by The Supreme Court, President Trump, Congress n’ the People

FACTS

Plaintiff Joanna Burke’s lawsuit is based on Texas property laws and should never have been unlawfully snap-removed to this court [ECF 1], and fraudulently allowed to remain in this court.

By retaining these proceedings in federal court, this now necessitates a complex system of appeals and certified questions to end up back at the highest court of the state of Texas on controlling questions of law.

Magistrate Judge Christina A. Bryan’s (“MJCAB”) high crimes and misdemeanors are a continuation of outrageous behavior which Plaintiff has endured for over fourteen lawless years in this federal court, excluding the honest and Honorable Stephen Wm. Smith.

After this court again refused to file Joanna Burke’s pleadings as delivered, on Thursday, Feb. 20, 2025 MJCAB issued her terse Order ECF 70, denying Plaintiff’s motion on the premise (quoting verbatim extracts from her order):

“She also filed “Plaintiff’s Motion to Certify Questions to the Court of Appeals for the Fifth Circuit.”  ECF 62.

Further, the Court has no authority to “certify” a question to the Fifth Circuit.  Plaintiff’s recourse is an appeal from a final judgment in this case to the Fifth Circuit.”.

However, once again, she “skipped”[1] controlling sections of Plaintiff’s latest motion. Quoting verbatim from her original motion, Joanna Burke specifically stated;

“However, the main purpose of this motion is to obtain a decision from the Texas Supreme Court as to the underlying dispute about Texas laws and statutory interpretation of the same leading to erroneous Erie guesses in both state and federal courts.

To achieve this end result, pro se Plaintiff believes that there are two methods, either by granting Plaintiff an interlocutory appeal, or by the District Court certifying a question to the Fifth Circuit asking them to initiate the Certified Question(s) to the state’s highest court, whilst this court abates the proceedings herein. Hence, this motion.” (emphasis added).

In the KEY ISSUES section, Plaintiff continued, in relevant part;

“(3) Whether an interlocutory appeal is merited to obtain Fifth Circuit approval and certification of question(s) to the Texas Supreme Court,

or alternatively;

(4) Whether the District Court would prefer to present a Certified Question to the Fifth Circuit concerning this Motion.” (emphasis added).

Finally, the Plaintiff submitted two Proposed Orders [ECF 61 and 62], which confirms the relief requested by Plaintiff as effectively seeking 1292(b) [certified questions interlocutory appeal] and wherein the signature line was to be signed by “United States District Judge Charles Eskridge”.

The Pro Se’s Pleadings Satisfy Twombly/Iqbal and Liberal Interpretation

In response, and after further due diligence, Plaintiff has been able to locate relevant and recent cases in this courthouse which contradict MJCAB’s non-inclusive and narrow, rather than “liberal interpretation” of the pro se’s motion.

See; Keys v. Torres, CIVIL ACTION No. 2:12-CV-350, at *4 (S.D. Tex. Sep. 15, 2015)

(“1. The Pleadings Satisfy Twombly/Iqbal. There is no question that the Magistrate Judge was correct to hold that Plaintiff’s pro se pleadings are to be construed liberally in his favor.”);

Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593, 601 (5th Cir. 2017)

(“—we decline to so strictly construe a pro se litigant’s complaint as to bar relief for omitting the legal term “quiet title” or because her prayer for relief included remedies not available to her.”).

KEY ISSUES

Magistrate Judge Bryan’s consistent dismissal of pro se Plaintiff’s well-researched motions and pleadings constitutes a flagrant violation of due process and access to justice.

Her latest statements and conclusions render her Order [ECF 70] void, a nullity in law.

This is not MJCAB’s first admonishment for failing to follow due process, procedures and laws, which has been underscored in Plaintiff’s filings, including referencing Judge James Ho’s sharp critique of the court and its presiding judge in Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.).

Additionally, Fifth Circuit Judge Dennis also eviscerated MJCAB in Hager v. Brinker Tex., Inc., 102 F.4th 692 (5th Cir. 2024, pub.)

– also a published opinion.

In her latest assault on due process, MJCAB’s Order [ECF 70] provides additional evidence of her malicious behavior in these proceedings, as detailed herein.

The Plaintiff’s claim highlights the egregious misuse of absolute judicial immunity to perpetrate deliberate and malicious actions that impinge upon fundamental civil and human rights.

When these injustices are directed at an 86-year-old widow and upstanding citizen, it underscores a systemic failure that resonates with growing concerns among lawmakers.

Members of Congress are voicing support for the impeachment of Article III judges who exploit their positions in such a manner, and MJCAB was appointed by Judge Eskridge:

“The article of impeachment says U.S. District Judge [John Bates]’s conduct in the case was “so utterly lacking in intellectual honesty and basic integrity that he is guilty of high crimes and misdemeanors.” (emphasis added)

– “Rep. Andy Ogles (R-Tenn.) on Monday introduced an impeachment resolution against a federal judge”[2].

STATEMENT OF FACTS

US District Judge Andrew Hanen: Sua Sponte Raises Three Certified Questions, Invites Interlocutory Appeal, and Stay of Proceedings

In A.B. v. Salesforce.com, Inc. (4:20-cv-01254) District Court, S.D. Texas, a case before Judge Andrew Hanen, he decided upon reconsideration, sua sponte and without a motion or invitation by any party that three questions of law should be Certified to the Fifth Circuit Court of Appeals

[ECF 208, Nov. 21, 2023].

In doing so, he relied upon the defendant’s footnote.

Judge Hanen allowed counsel additional time to decide if they wanted to pursue an interlocutory appeal.

Furthermore, he would stay the case if they elected to do so. On appeal, the Fifth Circuit decided the case on only one of those three certified questions.

APPLICABLE LEGAL STANDARDS

The Criteria for Certifying an Interlocutory Appeal Under Section 1292(b)

“(b) When a district judge, in making in a civil action an order not otherwise appealable under this section” (emphasis added);

Under Section 1292(b), an interlocutory appeal can be certified where;

(1) the order involves a controlling question of law;

(2) substantial ground for difference of opinion exist on the question;

and

(3) an immediate appeal may materially advance the ultimate termination of the litigation.

– 28 U.S.C. § 1292.

Judicial Conduct & Responsibilities

Caperton v. A. T. Massey Coal Co. Inc., 129 S. Ct. 2252, 2266 (2009)

(“”Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned””)

Magistrate Judges’ M&R’s and Judicial Review by US District Judges

Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024)

(“Our adversarial system of justice requires that we give both sides full and fair opportunity to present their strongest possible arguments to the court. It is through that clash of ideas that we ensure that justice is done pursuant to the laws that govern the dispute in question.”)

(citations omitted).

Arredondo v. Flores, CIVIL ACTION No. L-05-191, at *3-4 (S.D. Tex. July 7, 2008)

(“Federal Rule of Civil Procedure 72(b) states that a district court judge “must determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” A district court judge may reconsider any pretrial matter pending before the court that a magistrate judge has ruled on “where it has been shown that the magistrate’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(A).”).

Cordova v. Herrera, CIVIL ACTION No. C-11-268, at *1 (S.D. Tex. Mar. 14, 2012)

(“Plaintiff has filed a motion titled “Plaintiff’s Appeal to Compell [sic] Discovery” (D.E. 46), which the Clerk has docketed as a motion for reconsideration of this court’s order denying without prejudice his motion to compel (D.E. 44). Plaintiff failed to make it clear in his motion that he was asking for review by a District Judge; therefore the motion will be considered as a motion directed to undersigned United States Magistrate Judge to reconsider its earlier order.”)

ARGUMENT

Applying these criteria to these proceedings:-

Plaintiff Requested the District Court Judge’s Review

Section 1292(b) is clear when it states a “District Judge” has authority to review, not a Magistrate Judge.

See; Rosales v. Indus. Sales & Servs., Civil Action 6:20-CV-00030, at *4 (S.D. Tex. Feb. 28, 2023)

(“II. LEGAL STANDARD: District judges have discretion to certify interlocutory appeals”);

Self v. BPX Operating Co., 80 F.4th 632, 634 (5th Cir. 2023)

(“The district court certified its ruling for interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

This court granted the Selfs’ motion for leave to appeal from an interlocutory order.”).

A review of the lower court docket shows ECF 73 signed by Chief Judge S Maurice Hicks, Jr on 3/31/2022.

Furthermore, in Plaintiff’s motion:

“The Magistrate Judge’s M&R [ECF 58] is Another Rivera: An Erie Error:

Plaintiff acknowledges the District Court Judge does not have the jurisdiction to address prior erroneous decisions within the restricted context of this formal objection to the Magistrate’s Report and Recommendation (M&R).

Nevertheless, the court has the authority to prevent history from repeating itself by ensuring the Texas Supreme Court is involved in resolving the controlling, certifiable questions presented here.”

(emphasis added) – ECF 62, p. 5].

This complies with Cordova’s argument that Plaintiff “make it clear she was asking for review by Judge Eskridge”.

As such, “it has been shown that the magistrate’s order is clearly erroneous or contrary to law” – Arredondo.

Even for argument’s sake she has authority to address the motion, MJCAB refused to issue a supplementary Memorandum & Recommendation including the standard disclaimer pursuant to 28 U.S.C. § 636(b)(1)(C) by treating Plaintiff’s motion with deception, and in violation of due process, rules, procedures and laws.

In short, her order is void ab initio.

1292(b)(1)

Plaintiff’s motion has identified (1) the controlling questions of law as:

[“(1) Whether there is a valid judgment of foreclosure;

(2) Whether the statute of limitations to foreclose is determined as four years or ten years.]”.

1292(b)(2)

Clearly, (2) has been met by the fact this court refuses to properly address the difference of opinion, instead erroneously relying upon an unpublished Fifth Circuit opinion in Couch [ECF 58, p.5-7] to dismiss the controlling questions.

These questions have been subject to Erie guesses in both federal and circuit court, with devastating consequences, including the loss of citizens’ homesteads and the emotional distress caused as a result to these families.

This is explained when discussing Rivera, where sitting US District Judge Nelva G. Ramos’s independent analysis proved correct, rejecting a line of past court opinions by stating firmly:

“Following Rivera would be to grant amnesty to errant lenders as a result of the passage of time, alone.”

As Plaintiff’s motion stated whilst discussing Rivera, the Texas Supreme Court in Wood provides examples of many erroneous Erie guesses on the Statute of Limitations (“SOL”) question, including the Fifth Circuit, and based on the same type of controlling question as presented herein.

Furthermore, Plaintiff cited other relevant precedential cases revolving around Erie and Certified Questions involving protected Texas homestead laws as discussed in her snubbed motion.

See; Alexander v. Wells Fargo Bank, N.A., 867 F.3d 593 (5th Cir. 2017), which refers to Wood, Garofolo and Priester and the controlling questions of law which were proven to be erroneous Erie guesses by the Texas Supreme Court.

Plaintiff’s controlling questions are no different, and equally important.

This court included Magistrate Judge Andrew Edison’s adopted M&R in Holcomb v. Specialized Loan Servicing, LLC (3:21-cv-00210) District Court, S.D. Texas, and he too inserts cases which have been decided by Erie guesses, including this court and Judge Eskridge in Strange.

This is contrary to Plaintiff’s well-researched legal analysis, classifying it as 1292(b)(2) “substantial ground for difference of opinion exist on the question”.

Additionally, MJCAB’s latest Orders suggest new arguments by now claiming:-

(a) the lien has already been foreclosed, and;

(b) relying upon Texas Civil Practice and Remedies Code § 34.001 which allows a decade (10 years) to foreclose, both of which are completely absurd and rejected in Plaintiff’s response.

1292(b)(3)

Plaintiff avers certification will advance this litigation for basically the same reasoning applied in many certified interlocutory appeals, including the Southern District.

These cases resulted in the Certified Question being answered by the Fifth Circuit on interlocutory appeal, even in cases involving Texas law, after the questions were transported to the state’s highest court.

Despite the “rush to judgment” by MJCAB and the argument that the case is nearing its end, which would typically invoke a normal appeal from a final judgment, Plaintiff remains confident that the Fifth Circuit could not ignore the lack of due process and would be remanded for reasons previously presented in these proceedings, including the disregard of Judge Ho’s admonishment for repeated acts.

Combined with the case studies below, Plaintiff asserts this is an exceptional case.

The court is obligated to follow the rule of law and certify the controlling questions when they are in dispute.

Failure to do so would constitute a violation of both state and federal constitutional principles.

CASE STUDY: Sanders v. The Boeing Co.

While many of these arguments have been presented in Plaintiff’s motion, she provides supplementary support for the three-pronged reasoning under 1292(b) why MJCAB should not fatefully “skip” the arguments raised in support of Plaintiff’s motion to reconsider.

The Plaintiff is supported by the Texas Supreme Court

Joanna Burke intervened and subsequently sued Defendants in Harris County District Court, the latter resulting in these proceedings.

The Sanders opinion is based on two Certified Questions from the Fifth Circuit.

Notably, the Supreme Court made mention of the many incorrect court interpretations and decisions, for example discussing In Agenbroad and Bell in response to the two questions in Sanders v. The Boeing Co., 680 S.W.3d 340, 348 (Tex. 2023).

As this court is fully aware, the Plaintiff was sideswiped during her litigation in Minnesota by Defendants and their agents when they unlawfully commenced nonjudicial foreclosure proceedings in Harris County, Texas.

The Plaintiff knew this was an unlawful move by Defendants – as the appeals process was not at an end – and she correctly acknowledged the law had been violated.

That stated, the Sanders opinion by the state’s highest court, released Dec. 1, 2023, provided precedential support to her argument, namely where Defendants and their agents had maliciously slated her home for foreclosure while the case was on appeal at the Eighth Circuit and refused to stop the sale, even over the written objections by Plaintiff.

The Plaintiff is Supported by President Donald Trump [47], Congress and the People

Despite these facts, including citing Sanders when she became aware of the Dec. 1, 2023 opinion, Plaintiff would be unlawfully denied the relief she requested, by both the state court and federal court.

In this time-sensitive situation, she was forced to file for bankruptcy protection to allow her to gather her thoughts as to how to tackle such legal malfeasance, and when considering the federal courts documented animosity toward Joanna Burke.

See; Samuels v. PHH Mortgage Corporation (4:23-cv-04687) District Court, S.D. Texas (Judge Alfred H. Bennett), removed case (Doc. 1, Dec. 15, 2023) re 202359141 – SAMUELS, JEFF vs. AVT TITLE SERVICES (Court 234), including VERIFIED PETITION IN INTERVENTION SEEKING DECLARATORY JUDGMENT WITH APPLICATION FOR INJUNCTIVE RELIEF BY JOANNA BURKE (Dec. 5, 2023, Img # 111663371), in part:

“An Active Dispute and Litigation Prevents Foreclosure: Joanna Burke is litigating an active civil suit against PHH Mortgage Corporation in Burke v. PHH Mortgage Corporation (0:23-cv-01119-WMW-DTS), District Court, D. Minnesota, currently under appeal to the 8th Circuit.

Despite this effectively tolling any foreclosure notice or sale, the same defendants listed here have collectively defied the rule of law. Brazenly, they have scheduled Joanna’s home for auction on January 2, 2024, disregarding the ongoing legal proceedings.

See; Tex. Civ. Prac. & Rem. Code § 65.011.

The Scheduled Sale Violates the Law: As recently as Friday last week, a Texas Supreme Court case confirmed this in Sanders v. The Boeing Co., No. 23-0388, at *18 (Tex. Dec. 1, 2023)

(“when a party appeals a dismissal order, the dismissal does not become final until the party has exhausted their appellate remedies and the appellate court’s power to alter the judgment ends. We agree.”).”.

This argument, including Sanders was reiterated in Harris County District Court case 202386973 – BURKE, JOANNA vs. DEUTSCHE BANK NATIONAL TRUST COMPANY (Court 011), from her first to active complaint, unlawfully removed and subject to these court proceedings.

Magistrate Judge Christina A. Bryan’s Face is Too Red, Even for a Sky-Blue Democrat

In short, this court’s Erie guess of Texas law is not only erroneous, but also patently absurd.

“This argument does not even pass the “red face” test”

(Tharp v. Builders FirstSource-Texas Grp., No. 02-23-00223-CV, at *13 (Tex. App. Jan. 11, 2024) (rejecting statutory construction that was “so patently absurd as to not pass the ‘red face’ test”)),

and the interlocutory appeal to Certify Questions is mandatory to avoid a manifest injustice.

SUMMARY

Illustrating judicial waste as a direct result of personal bias, malicious prosecution and willful persecution, all whilst in contravention of due process, binding precedent and the rule of law, Plaintiff provides a final case study which ratifies her argument and allegations.

CASE STUDY: Devillier v. State

The Takings Clause is appropriate considering the facts and history of Joanna Burke’s lengthy and unnecessary litigation which should have ended in Judge Lynn Nettleton Hughes chambers in 2011, when Akerman for Deutsche Bank failed to present the actual signed loan papers for the purported loan, because they didn’t have those papers for a predatory loan which consummated by defunct Indymac’s bank [application] fraud.

See; U.S. v. Bobo, CRIMINAL ACTION No. 1:06-CR-0172-02-TWT-CCH (Superseding), at *17-18 (N.D. Ga. Feb. 20, 2007)

(“In all four of these cases, the circuit courts concluded that bank loan application fraud and bank fraud are separate offenses, and therefore, that the same conduct could be punished under both § 1014 and § 1344 and the separate counts in an indictment that did so would not be multiplicitous.”)

Returning to Devillier, and like the current proceedings, that case also started in state court but would be removed to federal court by the State of Texas – no less – on Jun. 20, 2020, nearly five years ago.

As a result of the Supreme Court’s opinion, it will no doubt be remanded back to state court based upon the following:

In the intervening period, Devillier has resulted in four separate opinions and orders by the Fifth Circuit, including denial of hearing en banc (two published opinions, and two published orders).

Ultimately, the Fifth Circuit has once more been reversed, this time by Justice Clarence Thomas’s authored opinion in a Supreme Court Opinion, released in 2024.

The cacophony of “missteps” and legal errors did not stop there, with Judge Patrick “no free home” Higginbotham and fellow panelists – Judges’ Higginson and Southwick – first ordering the case be remitted to state court directly.

However, belatedly realizing they are circuit judges, not district judges, they would be forced to release yet another order to fix that error, remanding the case for [reversed] Magistrate Judge Andrew Edison (“MJAE”) and Judge Jeff Brown to consider remand to Texas state court.

Currently, MJAE (who authored the disputed M&R in Holcomb) is collecting briefs to determine if remand is warranted at the time of this filing.

This mirrors Joanna Burke and Hon. Stephen Wm. Smith’s experience with panelist Judge Stephen Higginson, who also issued an opinion which had to be corrected after Hon. Smith advised the circuit court that Judge Higginson erroneously named Deutsche Bank as the “mortgage servicer” in his opinion.

It also resulted in the opinion sua sponte changing from unpublished to published at the Fifth Circuit.

Likewise, Joanna Burke also filed her Petition with the Supreme Court

(Burke v. Deutsche Bank Nat’l Trust Co., 139 S. Ct. 2660 (2019)),

spending around $7,500 on printing legal booklets that would never see a Supreme Court Justice’s chambers, let alone their hands.

That is where the similarity between Texas and her petition would end, as Plaintiff would not receive an opinion by Justice Thomas or the court, rather her petition would be summarily denied by an intake clerk, who really didn’t need 40 specially printed booklets to make that decision.

This, despite the fact that the Fifth Circuit violated binding precedent, the rule of orderliness, and made another erroneous Erie guess in that case as well, as supported by Plaintiff’s then counsel, legal titans Connie Pfeiffer and Steve Berman, who agreed with Hon. Stephen Wm. Smith that the Fifth Circuit’s opinion was a manifest injustice.

As in Devillier, removal was impetuous.

It has impacted everyone’s lives for five years, and most likely another five years in state court, all to deny home and landowners in Texas their Constitutionally protected rights. It’s both wasteful and shameful.

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 and relief requested here and in the proposed order, the court should GRANT Plaintiff’s reconsideration, certify the interlocutory appeal to the Fifth Circuit, stay proceedings, and for any and all other relief to which Plaintiff is entitled. An order was previously supplied.

RESPECTFULLY submitted this 28th day of February, 2025.

[1] “Magistrate Judge Bryan’s interpretation of the law is completely erroneous, as well as the opinions she relies upon.

Plaintiff addressed this misapplication of Texas laws, and particularly Texas Code § 34.001 with specificity, but her memorandum “skipped” Plaintiff’s arguments, which is a recurring theme in her omnibus of Orders and M&R’s released on Jan. 23, 2025.” – ECF 62, p. 10.

[2] https://www.yahoo.com/news/republican-files-article-impeachment-against-203841898.html, Yahoo News, last visited 2/26/2025.

Plaintiff respectfully requests US District Judge Charles Eskridge review Plaintiff’s Objection and Request for Reconsideration of ECF 61 together with PLAINTIFF’S OBJECTION AND REQUEST FOR RECONSIDERATION BY THE DISTRICT JUDGE RELATIVE TO THE MAGISTRATE JUDGE’S ORDER ECF 70 REGARDING ECF 62 PLAINTIFF’S MOTION TO CERTIFY QUESTIONS TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT, and which provides the arguments necessary to consider this reconsideration.

Both pleadings have been sent to this court in the same USPS Express Mail package on Friday, Feb. 28, 2025.

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 and relief requested here and in the proposed order, the court should GRANT Plaintiff’s STAY while the Certified Question(s) are on Interlocutory Appeal, or in the alternative GRANT the 28-Day EXTENSION OF TIME, and for any and all other relief to which Plaintiff is entitled. A Proposed Order has been provided previously.

RESPECTFULLY submitted this 28th day of February, 2025.