Texas Jay’s Sprawlin’ Opinion on Unlawful Debt Collectin’ for Florida Loan Sharks and Lawyers

OUTLAW JUDGE TAMI CRAFT SELF-RECUSES AFTER VIOLATING EVERY TEXAS LAW, RULE AND CIVIL PROCEDURE

JAN 25, 2023

LIT COMMENTARY

DEC 7-8, 2023

PLAINTIFF’S MOTION TO DISMISS PURSUANT TO TEX. R. CIV. P. 91a

DEC 6, 2023 | REPUBLISHED BY LIT: DEC 7, 2023

Pursuant to TEX. R. CIV. P. 91a.1, plaintiff Idea 247, Inc. files this motion to dismiss the claims asserted in the intervention of Mark Burke.

1.

OVERVIEW

This is a simple case to enforce a guarantee of a commercial loan.

Idea 247 loaned money to Quick Tube Systems, Inc. It defaulted, so Idea 247 sued its owner, defendant Raymond Epps, who had guaranteed the note.

Last month, Mark Burke intervened.

He has no relationship to the transaction, or to the borrower Quick Tube, or to the guarantor Raymond Epps, or the lender Idea 247.

He appears to want to use this suit to obtain a construction of the Texas Finance Code that conforms to his own personal viewpoint.

However, because the sections of the Texas Finance Code relied upon by Burke to intervene in this case do not apply to commercial loans—like the one involved in this case— and because, even they did apply to the loan in this case, Burke does not have any actual damages required by the law for standing, any claim in his intervention has no basis in law or fact against Idea 247, or against the attorney representing it, or against his law firm.

Therefore, Burke’s claims should be dismissed under TEX. R. CIV. P. 91a.

Additionally, any claim against Idea 247’s attorney or his firm is barred by attorney immunity, and for that reason also Burke’s claim should be dimissed under TEX. R. CIV. P. 91a.

2 .

BACKGROUND

Quick Tube borrowed money from Idea 247 pursant to a Revolving Loan

Agreement (the Note).1 Quick Tube’s obligation was guaranteed by defendant Epps, who also signed the Note.

Because Quick Tube defaulted on the Note, Idea 247 filed this suit on September 26, 2023 against him to enforce the guarantee.

Though served with citation, Epps has failed to answer.

On November 15, 2023, Mark Burke intervened.2

Burke is not the borrower, the guarantor, the lender, or even a client of the firm representing the lender.

He has no connection to the transation whatsoever.3

In his sprawling 20-page pleading, Burke talks about interest rates, several unrelated lawsuits (including a defamation case filed against him by attorney Robert Kruckemeyer4), and bonds.

But he never alleges any facts or law which comprise a factually or legally congnizable cause of action against Idea 247, or against its attorneys, or any facts demonstrating that he has standing herein.

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— lawsinusa (@lawsinusa) December 6, 2023

3.

THIS MOTION SATISFIES THE REQUIREMENTS OF TEX. R. CIV. P. 91a

Idea 247 files this motion pursuant to TEX. R. CIV. P. 91a.

It is not entirely clear what causes of action, if any, Burke has pleaded.

In his Intervention,5 Burke asserts that TEX. FIN. CODE § 392.403 creates a private cause of action for the violation of TEX. FIN. CODE, ch. 392.

That chapter, as the law discussed in this motion shows, is related to consumer debt, which does not apply here.

Further, to have standing, the plaintiff must have “actual damages,” which Burke does not.

1 The Note is attached to Plaintiff’s Original Petition as Exhibit 1.

2 Burke’s intervention is entitled Verified Petition in Intervention and Third-Party Petition of Mark Stephen Burke (Invtervention).

It has been “corrected” and amended since then; the latest occasion was on November 20, 2023.

3 Burke never signed the Note; in fact, his name nowhere appears in it.

That’s because he has no relationship to the transaction, with the parties to it, or with any actions involved in collecting the Note.

4 Robert Kruckemeyer vs. Blogger Inc. d/b/a LawIn Texas.com, Cause Number 2023-11266, In the 189th Judicial District Court of Harris County, Texas.

5 Burke’s Intervention at 14–15.

Burke goes on to cite TEX. FIN. CODE § 392.101, which requires “third- party debt collectors” to have bonds.

As discussed below,6 there are no “third-party debt collectors” in this suit.

He further cites TEX. FIN. CODE § 392.202, which generally addresses the correction of information in the files of “third-party debt collectors” and “credit bureaus.”

Again, though Burke makes a conclusory allegation7 that Idea 247’s lawyers are “third-party debt collectors,” he pleads no fact which would support meet the definition of that term.8

 Nor does he plead that any inaccurate item or information is contained in the file of any “third-party debt collector.”

Finally, Burke cites TEX. FIN. CODE § 392.301(a)(3).

This subsection appears under a section about “threats or coercion,” and it proscribes representing that a consumer is refusing to pay a consumer debt.

But, in addition to Burke’s fatal flaw that this suit does not involve a consumer debt, there is no allegation that anyone represented or threatened to represent that a consumer refused to pay a consumer debt.

Accordingly, none of the sections cited by Burke is related to this suit.

Burke then lists various types of damages:9 actual damages, statutory damages, “reasonable damages,”10 and exemplary damages.11 

Burke summarizes his defective recitation of damages by referring to a different lawsuit that is unrelated to this case, namely the Kruckemeyer defamation suit against him.12

6 See pp. 13–14, infra.

7 Intervention at 4 and 16.

8 See pp. 13–14, infra.

9 Burke’s Intervention at 14–15.

10 “Reasonable damages” have nothing at all to do with this case.

On page 15 of his Intervention, Burke cites a case which construes the Texas Anti-Retaliation Law concerning certain statutory damages that are available when a person is fired for asserting a worker’s compensation claim.

Tex. Dep’t of Family & Protective Services v. Mitchell, 510 S.W.3d 199, 202 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

The statute provides that the employer “is liable for reasonable damages incurred by the employee as a result” of the employer’s violation of the Texas Anti-Retaliation Law.

See TEX. LAB. CODE § 451.002(a).

The opinion is simply inapposite to the case at bar.

11 As with the phrase “reasonable damages,” Burke cites the Mitchell case, id., as if it provides exemplary damages in this type of suit. It does not.

12 Robert Kruckemeyer vs. Blogger Inc. d/b/a LawIn Texas.com, Cause Number 2023-11266, In the 189th Judicial District Court of Harris County, Texas.

Apparently, Burke is basing a request for money damages in this case based upon the allegations against him in some other suit.

In any event, under the law, Burke has no standing to pursue this suit because he has no actual damages.13

Burke also asks for a declaratory judgment.14

He wants the court to declare that Idea 247’s lawyers are “third-party debt collectors” (which they are not) even though he has never dealt with them prior to his intervention, and he thinks that they should have a bond.15

However, as demonstrated below,16 Burke’s request for a declaratory judgment fails under the law because he is not “interested” in the transaction at issue.

TEX. CIV. PRAC. & REM. CODE § 37.004.

Therefore, to the extent that Burke’s request for a declaratory judgment is a cause of action, or that he attempts to assert a claim under TEX. FIN. CODE, ch. 392, then his claim has no basis in law or fact.

Specifically: (a) Chapter 392 only applies to consumer loans, and (b) Burke has no standing because he has no actual damages.

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— lawsinusa (@lawsinusa) December 5, 2023

A.                 Chapter 392 of the Texas Finance Code does not apply to this case. Burke bases his entire cause of action in his Intervention upon provisions of TEX. FIN. CODE, ch. 392.17

However, as courts have explained multiple times, as recently as this year, the provisions of Chapter 392 apply to consumer loans, not to commercial loans, such as the loan in this suit.

Just eight months ago, the Fourteenth Court of Appeals ruled in Izen v. Move-It Self Storage, LP, No. 14-21-00089-CV, 2023 WL 2808119, at *4 (Tex. App.—Houston [14th Dist.] Apr. 6, 2023, no pet.):

Turning to appellant’s TDCA [Texas Fair Debt Collection Practices Act] claim, there is no allegation of any consumer debt owed. See TEX. FIN. CODE § 392.001(2). . . . [A]ppellant failed to allege that the indebtedness owed by the Heads was a “consumer

13 See pp. 8ff in this motion.

14 Intervention at 16.

15 For some inexplicable reason, Burke says that the Court in this case should declare that Robert Kruckemeyer is a “third-party debt collector.” Intervention at 16. Obviously, that is unrelated to the issues in this standard suit about the guarantee of a commercial loan.

16 See pp. 10ff, below.

17 See, e.g., page 14 of Burke’s Intervention. See also pp. 5, 11, 15, 16, 18 of it. debt” as that term is defined  (“Although a plaintiff need not be in privity with the defendant to bring an action under the [TDCA], the debt in question must still be a consumer debt.”); see also TEX. FIN. CODE § 392.403(a) (“A person may sue for   actual damages sustained as a result of a violation of this chapter.” (emphasis added)).18

The court in Izen confirmed the correctness of its ruling in part by a detailed analysis of the statutory sections and definitions contained in TEX. FIN. CODE, ch. 392. The Izen court also followed the Farkas case, which was decided in 2021.

Farkas sued Nationstar for violations of sections 392.301(a)(8) and 392.304(a)(19) of the DCPA.

These sections prohibit a debt collector from taking certain actions while attempting to collect a consumer debt.

[The court then cited numerous provisions of Chapter 392, including § 392.403(a).]

Consequently, obligations arising out of commercial transactions fall outside of the DCPA.

*        *        *

[T]he debt in question must still be a consumer debt.  Because none of [plaintiff’s] cited cases involve an allegation the debt at issue was commercial, they are unhelpful.

*        *        *

[Loans] “taken for commercial purposes, even if to make personal income, are not consumer debts under Texas law.”

*        *        *

Based on the record before us, we conclude the loan was not a consumer transaction, and Farkas did not have standing to sue under the DCPA.

18 It is particularly interesting here that this ruling applies the precise section of the Texas Finance Code relied upon by Burke, and the opinion was issued seven months before Burke intervened in this lawsuit.

Farkas v. Nationstar Mortgage, LLC, No. 05-19-01024-CV, 2021 WL 2548709, *2 (Tex. App.—Dallas June 22, 2021, no pet.) (mem. op.) (emphasis added).

Interestingly, like the Izen case, the Farkas court quoted the exact provision Burke relies upon to support his intervention. Manifestly, since the case at bar is “not a consumer transaction,” Burke does “not have standing to sue under the DCPA.”

Burke reveals in his Intervention that he seeks to foist his own peculiar idea about consumer loans upon the Court and this case.

In it, he “claims that . . . all debt is ʻconsumer’ debt.”19

Indeed, he admits his agenda plainly: he wants to use this suit to get a declaration that “all debt collection is ʻconsumer’ debt collection.”20

But, as Burke should know, the relevant statutory provisions and the controlling decisional law have already been decided against his private views.

·         TEX. FIN. CODE § 392.001(1) defines “consumer” to mean “an individual who has a consumer debt.”

·         TEX. FIN. CODE § 392.001(2) defines “consumer debt” to mean “an obligation, or an alleged obligation, primarily for personal, family, or household purposes and arising from a transaction or alleged transaction.”

The statute expressly defines “consumer” and “consumer debt”—which would be surplusage21 if “all debt is consumer debt”—and, by definition, these terms do not apply to commercial loans.

Other courts have confirmed that point, as the Izen and Farkas decisions have likewise ruled.

Moreover, the principle that Chapter 392 applies to consumer loans—but not to commercial transactions—though reaffirmed this year, is not new. In fact, it dates back nearly thirty years.

In 2001, the court in Ford v. City State Bank of Palacios, 44 S.W.3d 121, 136 (Tex. App.—Corpus Christi–Edinburg 2001, no pet.)

19 Burke’s Intervention at 13.

20 Id. at 16.

21 Courts should give effect to all of the words of a statute and avoid treating any language as surplusage. City of Austin v. Quinlan, 669 S.W.3d 813, 821 (Tex. 2023).

ruled:

[A]n obligation arising out of a commercial transaction is not within the scope of the DCPA. First Gibraltar Bank, FSB v. Smith, 62 F.3d 133, 135 (5th Cir.1995).22

As quoted above, the Ford court itself followed the Fifth Circuit’s decision in First Gibralter, handed down 28 years ago. And the Ford court also cited with approval Garza v. Bancorp Group, Inc., 955 F.Supp. 68, 71–72 (S.D. Tex. 1996), which had held that:

(1)       despite the intent to benefit family members, the purpose of the loan was a commercial one, and (2) the DCPA does not extend to the debts of family-owned businesses that are incurred for business purposes.

Ford, id., at 137. As these rulings demonstrate, Texas law has determined for almost three decades that Chapter 392 (and its predecessors) do not apply to commercial loans.

Furthermore, Chapter 392’s definitions also establish that Idea 247 is not a “creditor.” That is because Idea 247 is not here involved with a consumer debt.

·         TEX. FIN. CODE § 392.001(3) defines “creditor” to mean “a party, other than a consumer, to a transaction or alleged transaction involving one or more consumers.”

Burke based his allegations in part on the “loan contract” (i.e., the Note) which was guaranteed by defendant Epps.23 That document itself indicates that it does not involve “consumer debt” or a “consumer” (an individual who has a consumer debt). Accordingly, Idea 247 is—by definition—not a “creditor.”

Thus it is that, here, Burke is trying to get this Court to go where no court has gone before, viz. to apply Chapter 392 to a commercial case.24

22 The relevant passage of the Fifth Circuit’s decision in First Gibralter Bank extends to page 136.

23 Burke’s Intervention at 6.

24 Burke has cited no case in which Chapter 392 applied to a commercial loan.

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B.                 Burke does not have standing. In Farkas, because the loan was a commercial transaction, not a consumer loan, the plaintiff did not have standing.

Standing is absolutely essential to jurisdiction, and as a consequence it is constitutionally essential.

Among the numerous decisions which enforce this requirement is Uddin v. Cunningham, No. 01-18-00002-CV, 2019 WL 4065273, at *5 (Tex. App.—Houston [1st Dist.] Aug. 29, 2019, pet. dism’d), in which the First

Court of Appeals confirmed:

When a plaintiff lacks standing to bring a claim, the trial court is deprived of subject-matter jurisdiction and the case must be dismissed. See id.

Because standing implicates a trial court’s subject-matter jurisdiction, we typically address standing arguments first.

Just two years ago, the Supreme Court confirmed that standing is so important that courts “ʻhave an obligation to examine our jurisdiction any time it is in doubt.’

Constitutional standing requires a concrete injury that is both traceable to the defendant’s conduct and redressable by court order.”

Tex. Bd. of Chiropractic Examiners v. Tex. Med. Ass’n, 616 S.W.3d 558, 567 (Tex. 2021).

The harm complained of must be specific to the plaintiff.

“An injury is ʻparticularized’ for standing purposes if it ʻaffect[s] the plaintiff in a personal and individual way.’”

Data Foundry, Inc. v. City of Austin, 620 S.W.3d 692, 696 (Tex. 2021).

As an intervenor, Burke has the obligation to prove standing.

Nghiem v. Sajib, 567 S.W.3d 718, 721 (Tex. 2019).

However, he cannot do so here because, even if Chapter 392 applied, Burke has not pleaded, and cannot show, that he has sustained actual damages.

The Fifth Circuit expressed and applied this key feature of Texas law in McCaig v. Wells Fargo Bank (Tex.), N.A., 788 F.3d 463, 473 (5th Cir. 2015):

The rule suggested by these cases and supported by a plain reading of the statutory text is that persons who have sustained actual damages from a TDCA violation have standing to sue.

See TEX. FIN. CODE § 392.403(a)(2).

McCaig, of course, was not an outlier. Its ruling was followed by Smith v. Moss Law Firm, P.C., No. 3:18-CV-2449-D, 2020 WL 584617, at *7 (N.D. Tex. Feb. 6, 2020):

“[P]ersons who have sustained actual damages from a [TDCPA] violation have standing to sue.”

Interestingly, though Burke actually cites McCaig in his Intervention,25 he omits this holding of the case, a holding about standing which he has not met and cannot meet.

That is because he has not incurred actual damages.

Plaintiffs must prove that they “suffered some tangible injury as a result of the transaction.”26

As a subsequent court ruling explained:

Actual damages sufficient to allege TDCPA standing include the “loss of money, time, and emotional distress  ”27

Burke has not incurred any of these.

This requirement of actual damages coheres with broader Texas policy that requires intervenors to have a justiciable interest in the case, thereby protecting parties from “interlopers,” like Burke.28

Here, because Burke has not demonstrated that he has sustained actual damages, he has no standing and, even if this were a consumer loan, Burke’s claim should be dismissed.

As Plaintiff failed to show he suffered any damages, the Court finds Plaintiff lacks standing for his TDCA claims and grants Defendants’ motion for summary judgment concerning the TDCA claims.

25 Burke’s Intervention at 14.

26 Rios v. Partners in Primary Care, P.A., No. SA-18-CV-00538-FB, 2019 WL 668509, at *10 (W.D. Tex. Feb. 15, 2019), report and recommendation adopted sub nom. Rios v. Ciox Health, LLC, No. CV SA-18-CA-538-FB, 2019 WL 2565265 (W.D. Tex. Mar. 22, 2019).

27 Kranz v. Midland Credit Mgmt., Inc., No. SA-18-CV-169-XR, 2020 WL 3899223, at *5 (W.D. Tex. July 10, 2020).

28 “ʻBecause intervention is allowed as a matter of right, the ʻjusticiable interest’ requirement is of paramount importance  ’ Id. at 154–55.

ʻ[I]t defines the category of non-parties who may, without consultation with or permission from the original parties or the [trial] court, interject their interests into a pending suit to which the intervenors have not been invited.’

Id. at 155 (noting ʻthe ʻjusticiable interest’ requirement protects pending cases from having interlopers disrupt the proceedings’).”

Triple P.G. Sand Dev., LLC v. Del Pino, 649 S.W.3d 682, 697 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (emphasis supplied).

Ozmun v. Portfolio Recovery Associates, LLC, No. A-16-CA-940-SS, 2018 WL 3018176, at *3 (W.D. Tex. June 15, 2018).

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— lawsinusa (@lawsinusa) November 17, 2023

C.                 A declaratory judgment action under TEX. CIV. PRAC. & REM. CODE, ch. 37 requires a person to show his interest in the transaction.

TEX. CIV. PRAC. & REM. CODE, ch. 37 establishes and governs declaratory judgments.

And it provides in TEX. CIV. PRAC. & REM. CODE § 37.004(a) the following:

A person interested under a . . . written contract . . . , or . . . whose rights, status, or other legal relations are affected by a statute . . . may have determined any question of construction or validity arising under the . . . statute . . . or contract . . . and obtain a declaration of rights, status, or other legal relations thereunder.

Accordingly, the statute requires proof that the person seeking a declaratory judgment must have an “interest[]” in the matter.

Burke’s musings in his intervention about the rate of interest under the TEX. FIN. CODE § 303.009,29 and about whether anyone is bonded,30 do not demonstrate that he has a legally cognizable interest or basis for any relief, including a declaratory judgment.

Quite simply, Burke has no standing,31 and without standing there exists no jurisdiction.32

29 Burke’s Intervention at 6–7.

30 Burke’s Intervention at 5 and 12.

31 According to the Supreme Court, “plaintiffs have standing to sue when they allege a concrete personal injury traceable to the defendant’s conduct, and the relief requested is likely to redress that injury.” Grassroots Leadership, Inc. v. Tex. Dep’t of Family & Protective Services, 646 S.W.3d 815, 819 (Tex. 2022). Similarly, the Court earlier had ruled that a “plaintiff has standing when it is personally aggrieved.” Pike v. Tex. EMC Mgmt., LLC, 610 S.W.3d 763, 775 (Tex. 2020) (italics in the original).

32 “[S]tanding is a ʻprerequisite to subject-matter jurisdiction, and subject-matter jurisdiction is essential to a court’s power to decide a case.’” Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass’n, 593 S.W.3d 324, 331 (Tex. 2020). Without “ʻstanding, a court lacks subject matter jurisdiction’ over the case, and the merits of the plaintiff’s claims thus cannot be litigated or decided.” In Interest of H.S., 550 S.W.3d 151, 155 (Tex. 2018).

Kyle v. Strasburger, No. 13-13-00609-CV, 2019 WL 1487357, at *4–6 (Tex. App.—Corpus Christi–Edinburg Apr. 4, 2019, no pet.) is instructive.

Kyle sought a declaratory judgment to declare that a deed of trust which secured a loan was void.

The trial court found that such a declaration would not determine the outcome of a “real controversy” between Kyle and appellees because of a subsequent divorce decree, and therefore ruled that a Kyle lacked standing and a justiciable interest necessary to seek a declaratory judgment.

Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining suit.

A plaintiff has the initial burden to plead facts establishing standing.

The issue focuses on whether a party has a sufficient relationship with the lawsuit so as to have a “justiciable interest” in its outcome.

Generally, a party has standing to sue if there is (1) “a real controversy between the parties” that (2) “will be actually determined by the judicial declaration sought.”

*        *        *

Accordingly, the judicial declaration sought by Kyle would not “actually determine” a “real controversy” between the parties. It follows that Kyle lacked standing under the UDJA to bring her claim for a declaration that the special warranty deed is invalid.

*          *          *

. . . Kyle could not be held personally liable on the home equity loan, regardless of whether the trial court declared the deed of trust securing the loan void. Kyle therefore lacked a justiciable interest in the outcome of this claim.

*          *          *

Kyle . . . has not met her burden to allege facts showing that she has standing to seek a declaration that the deed of trust is void.33

In the case at bar, Burke does not have a “sufficient relationship” to this suit to have a “justiciable interest in its outcome.”

To the contrary, the outcome of this suit will not affect him in any manner.

Accordingly, there exists no “real

33 Internal citations in the quoted text omitted.

controversy” between him and the parties which a declaration could actually determine.

Therefore, Burke’s claim for a declaratory judgment under TEX. CIV. PRAC. & REM. CODE, ch. 37 against Idea 247 and its attorneys has no basis in law.

That is because his “allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the [Burke] to the relief sought.”

TEX. R. CIV. P. 91a.1.

There exists no private cause of action for someone who is not a party to a consumer debt, or who has not sustained actual damages because of illegal collection efforts of a consumer loan, to obtain any relief under TEX. FIN. CODE §§ 392.403, 392.101, 382.202, and 392.301,34 or any other relevant section.

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4.

THE ATTORNEY AND LAW FIRM REPRESENTING IDEA 247 HAVE IMMUNITY

Burke is not a client of Clyde J. Jackson III, the undersigned attorney who represents Idea 247 in this case, or of Burford Perry LLP, his law firm, and the facts as pleaded by Burke corroborate that he is not.

In his Intervention, Burke expressly asserts that the undersigned represents Idea 247 in its suit against Epps.

Consequently, Burke’s pleading establishes that the undersigned and Burford Perry LLP have attorney immunity, which provides an additional ground for a motion to dismiss under TEX. R. CIV. P. 91a, as the Supreme Court has recently ruled:

In this case, the allegations in Bethel’s petition show that Bethel is not entitled to relief. In its Rule 91a motion, Quilling simply argued that the facts—as Bethel pleaded them—entitled Quilling to attorney immunity and thus dismissal under Rule 91a. The trial court did not need to look outside Bethel’s pleadings to determine whether attorney immunity applied to the alleged facts. See Youngkin, 546 S.W.3d at 681–83 (holding that a defendant was “entitled to dismissal” based on attorney immunity, despite the defendant’s failure to support his defense with evidence, because “the necessary facts [were] not in dispute”). . . . Taking Bethel’s allegations as true, the trial court determined that Bethel was not entitled to the relief sought because attorney immunity barred Bethel’s claims. That is enough for dismissal under Rule 91a.

Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651, 656 (Tex. 2020).

“In Cantey Hanger, LLP v. Byrd, we held that, ʻas a general rule, attorneys are immune from civil liability to non-clients for actions taken in connection with representing a client in litigation.’ 467 S.W.3d 477, 481 (Tex. 2015) (quotations omitted). The immunity inquiry ʻfocuses on the kind of conduct at issue rather than the alleged wrongfulness of said conduct.’” Id. at 657 (emphasis in original). Immunity attaches if “the attorney is discharging ʻlawyerly’ duties to his or her client.”

Taylor v. Tolbert, 644 S.W.3d 637, 646 (Tex. 2022).

The Court in Bethel confirmed that neither allegations of fraud nor those of criminal conduct suffice to undermine the attorney immunity doctrine.

“As we explained [in Bethel], a lawyer who is doing his or her job is not more susceptible to civil liability just because a nonclient asserts that the lawyer’s actions are fraudulent, wrongful, or even criminal.”

Taylor, id. at 648.

Here, the only action of the undersigned or his firm that Burke alleges in the case at bar is filing suit, which is quientessentially a “lawyerly” function.

Moreover, Burke’s effort to impose liability fails because he is not the client of the undersigned or his firm.

Consequently, Burke’s claim against the undersigned and his firm “have no basis in law or fact,” and should be dismissed under TEX. R. CIV. P. 91a.

Even if there were no attorney immunity, the Texas Finance Code provides Burke with no cause of action against an attorney under the facts of the case at bar as a “third-party debt collector,” which is what Burke claimed,35 because the definition of a “third-party debt collector” excludes attorneys.

·         TEX. FIN. CODE § 392.001(7) defines “third-party debt collector” to mean “a debt collector, as defined by 15 U.S.C. Section 1692a(6), but does not include an attorney collecting a debt as an attorney on behalf of and in the name of a client

35 Burke’s Intervention at 4 and 16.

unless the attorney has nonattorney employees who:

(A)            are regularly engaged to solicit debts for collection; or

(B)        regularly make contact with debtors for the purpose of collection or adjustment of debts.”

(Emphasis added.) Neither exception applies here. In this case, there are no facts, and accordingly there are no allegations, that the undersigned attorney or his firm are regularly engaged to “solicit debts for collection”36 or “make contact with debtors.”

Additionally, the Texas definition of “third-party debt collector” incorporates a definition of “debt collector” under federal law, viz., 15 U.S.C. Section 1692a(6).

That definition includes the term “debt,” which itself is defined: the definition of “debt” under 15 U.S.C. Section 1692a(5) “means any obligation or alleged obligation of a consumer. . . .” (Emphasis added.)

Consequently, the undersigned attorney, his firm, and Idea 24737 are not defined to be “third party debt collector[s].”

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5.

THIS MOTION IS TIMELY

This motion to dismiss has been “filed within 60 days after the first pleading containing the challenged cause of action is served on the movant.”

Accordingly, it is timely under TEX. R. CIV. P. 91a.3.

6.

THE COURT MAY AWARD PLAINTIFF ITS COSTS AND FEES

Under TEX. R. CIV. P. 91a.7, the Court may award Idea 247 “all costs and reasonable and necessary attorney fees incurred with respect to the challenged cause of action in the trial court.”

Because Burke is a complete stranger to the

36 Under the statute, “debt collection” relates to “consumer debts.” TEX. FIN. CODE § 392.001(5) defines “debt collection” to mean “an action, conduct, or practice in collecting, or in soliciting for collection, consumer debts that are due or alleged to be due a creditor.” (Emphasis supplied.)

37 Burke does not allege in the Intervention that Idea 247 is a “third-party debt collector.”

transaction made the basis of this suit, as well as to the parties involved, he patently has no standing, and has never had any standing.

Accordingly, Idea 247 requests the Court to award its attorney fees incurred in preparing and filing this motion, a motion which seeks to bring Burke’s unmeritorious claims to as prompt of a dismissal as the law permits.

TEX. CIV. PRAC. & REM. CODE § 37.009 provides an independent basis for the Court to award Idea 247 its costs.

Specifically, it states:

In any proceeding under this chapter, the court may award costs and reasonable and necessary attorney’s fees as are equitable and just.

In the case at bar, Burke is well aware that he has no business in this case.

Yet he barged where he did not belong,38 and refused to voluntarily dismiss his case, when given a chance, both before and after this motion was filed.39

This is consistent with Burke’s history of abusing the court system; for instance, in Cause Number 2022-6830740 he sued the opposing counsel and two judges:

·         10/18/22: Acting pro se, Burke filed a rambling 49-page petition against HCA Houston Healthcare generally complaining about its medical treatment of him;

·         11/21/22: Burke filed a meritless motion to disqualify HCA’s counsel and for sanctions;

·         3/15/23: Because Burke had failed to obtain an expert report as required by TEX. CIV. PRAC. & REM. CODE, ch. 74, he requested an extension of the statutory deadline, which Judge Lauren Reeder denied;

·         3/17/23: Two days after Judge Reeder’s ruling, Burke filed a motion to disqualify her, claiming inter alia that her orders were backdated,

38 As discussed above, Burke has no standing in this case; though he typed the phrase “justiciable interest” into his Intervention, he pleaded no facts whatsoever to support a finding that a justiciable interest exists. Intervention at 4.

39 Plaintiff provided Burke with an opportunity to voluntarily dismiss his intervention on December 4, 2023. He did not do so.

40 Mark Burke vs. HCA Houston Healthcare Kingwood, Cause Number 2022-68307, In the 234th District Court of Harris County, Texas.

constitiuting an “intentional act to harm” Burke, and that she had “bias and prejudice against” Burke;41

·         4/3/23: About two weeks after Judge Reeder’s ruling against Burke, and after Burke sought to disqualify her, he next tried to disqualify Hon. Susan Brown, the Administrative Judge, from ruling on his attempted disqualification of Judge Reeder; Judge Brown referred the matter, and Judge Robert H. Trapp was appointed to rule on Burke’s efforts to disqualify Judge Brown;

·         4/10/23: Judge Robert H. Trapp denied Burke’s effort to disqualify Judge Brown to rule upon Burke’s motion to disqualify Judge Reeder; Burke claimed the ruling was “void” in a document he filed the same day; the following week, Judge Brown denied Burke’s motion to disqualify Judge Reeder;

·         4/17/23: Since HCA had filed a motion to dismiss Burke’s medical malpractice case on 3/24/23 asserting that he had failed to timely serve an expert report, Burke filed a Second Amended Petition which dropped his medical malpractice claim; but, Burke added as defendants HCA’s lawyers, and pleaded among other things theories of stalking, conspiracy, and breach of fiduciary duty by HCA and them; Burke also sued Judge Reeder and Judge Brown in his amended petition, asserting ex parte communications, judicial misconduct, bias, and violation of ethical rules by Judge Reeder, and a “violation of due course of law” by Judge Brown;

·         6/28/23: Burke’s claims against Judges Reeder and Brown were severed, pursuant to TEX. CIV. PRAC. & REM. CODE § 30.017, and assigned Cause Number 2022-68037-A; two days before a show cause hearing ordered in that case, Burke tried to transfer his cases against HCA, its lawyers, and the judges into Cause Number 2023- 11266, the defamation action against Burke that is pending in this Court;42

41 Plaintiff’s Verified Declaration in Support of Motion to Disqualify Judge Lauren Reeder at 4–5.

42 Robert Kruckemeyer vs. Blogger Inc. d/b/a LawIn Texas.com, Cause Number 2023-11266, In the 189th Judicial District Court of Harris County, Texas.

·         6/30/23: In Burke’s suit against the judges, Hon. Dan Hinde first overruled Burke’s newfound theory that there was no jurisdiction, and then Judge Hinde dismissed the case because Burke had failed to comply with the requirements of TEX. CIV. PRAC. & REM. CODE § 30.017; later, on 8/2/23, Judge Hinde overruled Burke’s motion for reconsideration;

·         8/2/23: In the meantime, HCA and its lawyers had filed an Anti- SLAPP motion against Burke under TEX. CIV. PRAC. & REM. CODE, ch. 27; on 8/2/23, Judge Reeder signed a Final Judgment in Cause Number 2022-68037, incorporating an earlier ruling (on 7/20/23) that dismissed Burke’s claims under Chapter 27, that ordered him to pay $4,079.50 in attorney’s fees, and that imposed $500.00 in sanctions upon him.

As this chronology shows, less than four months after suing two judges, after suing opposing counsel, and after being sanctioned, Burke filed his baseless intervention in this suit.

Accordingly, Burke’s efforts to commandeer this suit in order to pusue his own eccentric economic or statutory agenda about debt collection under the Texas Finance Code do not constitute a simple mistake—rather, they are part of a determined course of conduct that abuses the civil justice system. Hence, it is “equitable and just” for him to bear the costs of his misconduct.

Finally, plaintiff requests the Court to allow it to submit its “costs and reasonable and necessary attorney fees incurred” in preparing and submitting this motion, and in responding to any subsequent filings by Burke in reply hereto, after the Court’s ruling hereon.

Wherefore, premises considered, plaintiff Idea 247 requests the Court to dismiss the claims of Mark Burke, to provide an opportunity for plaintiff to submit its costs and attorneys fees, and thereupon, to award plaintiff Idea 247 “all costs and reasonable and necessary attorney fees” related to this motion.

Plaintiff requests all other relief, at law or in equity, to which it may be entitled.

Respectfully submitted,

Bandit Robert ‘Robbin’ Berleth and Attorney Shannon ‘Barratry’ Lang’s Million Dollar Wire Transfer – Laws In Texas https://t.co/IFKS4uAZSB @jpmorgan @Chase

— lawsinusa (@lawsinusa) November 30, 2023

Burford Perry, LLP

By:       /s/ Clyde J. “Jay” Jackson III

Clyde J. “Jay” Jackson III

Texas Bar Number: 10502500
jackson@burfordperry.com

2 Houston Center
909 Fannin Street, Suite 2630
Houston, Texas 77010
Telephone: 713-401-9790
Telecopier: 713-993-7739

ATTORNEY FOR PLAINTIFF

Certificate of Conference

I hereby certify that intervenor Mark Burke is opposed to this motion.

/s/ Clyde J. “Jay” Jackson III

Clyde J. “Jay” Jackson III

Certificate of Service

I hereby certify that a true and correct copy of plaintiff’s motion to dismiss was served by e-service, efiling, certified mail/return receipt requested, hand- delivery, or telephonic document transfer on the 6th day of December, 2023 upon each person indicated below:

Mr. Mark Stephen Burke
46 Kingwood Greens Drive
Kingwood, Texas 77339
Telephone: 346-763-2074
Telecopier: 866-705-0576
browserweb@gmail.com

Intervenor Pro Se

/s/ Clyde J. “Jay” Jackson III
Clyde J. “Jay” Jackson III