The Big Question is Asked of The Court of Appeals for the Eleventh Circuit

Big Question(s) are Asked of the Eleventh Circuit, Ocwen and the CFPB  in the Initial Brief Submitted by These Pro Se Texas Homeowners

SEP 3, 2021 | REPUBLISHED BY LIT: SEP 4, 2021

INTRODUCTION

PREAMBLE

When you are pro se or non-prisoner as the Federal courts describe their own law-abiding citizens, legal writing has challenges. On the one hand you’re conscious of all the intricacies found in the federal rules and laws and all the other technicalities you must spend countless hours researching and studying to avoid the many pitfalls which await if you make the slightest mistake. On the other hand, you don’t want to be ‘trapped’ by all the legal verbiage and forget to relay why you’re before the court in a truthful and fact-driven analysis. In this case, that requires challenging those in a position of authority who have abused their power. Whilst uncomfortable to the authors, as no-one cares for criticism, it is necessary.

For sure, it is not a profession of choice for homeowners threatened with eviction and loss of their homestead to criminal theft, it’s a life-saving necessity, lest you will end up homeless on the streets because the legal community are too intimidated to question the courts for fear of the loss of their law licenses and income Meanwhile, congressmen and women are too invested in lobbying for their own personal agendas and insider stock trades.  

The Burkes case has highlighted the distressing facts; “In Texas, homestead rights are [were] sacrosanct.” See; Matter of McDaniel, 70 F.3d 841 (5th Cir. 1995). Judge James Ho recently wrote for the panel in Glen v. Am. Airlines, Inc., 20-10903, at *1 (5th Cir. Aug. 2, 2021) (“”The Founders recognized that the protection of private property is indispensable to the promotion of individual freedom. As John Adams tersely put it, ‘[p]roperty must be secured, or liberty cannot exist.’” Cedar Point Nursery v. Hassid, 141 S.Ct. 2063, 2071 (2021) (quoting Discourses on Davila, in 6 Works of John Adams 280 (C. Adams ed. 1851)). ”)  The Plaintiffs firmly believe the Fifth Circuit are the antithesis of this statement and the Eleventh Circuit has failed to show any detachment from that view.

Despite the many years in unnecessary litigation, it has become more evident courts can and will exploit pro se litigants. Simply stated, the Burkes just want their mortgage loan file to prove the lender application fraud and finally end this protracted legal debacle. Regrettably, the judiciary is unlawfully blocking access to a file which is routinely handed out in civil cases and should be automatically handed over during litigation. Instead, the lawyer in Texas admittedly and intentionally withheld the file and the courts excused his maliciousness and deceit. When the Burkes were getting nowhere in Texas, they applied to intervene in the lower court case. The facts are recanted throughout this brief and the lower court filings. The bottom-line is the same corrupt practices in Texas would play out in Florida, but this time it would not only include opposing counsel, it would include the government watchdog and the District Judge overseeing the case. The Burkes were shattered to witness ochlocracy by those you are supposed to give the highest level of respect. And they do. When Honorable Stephen Wm Smith was on the case, he was fair, polite, honest and you could tell he was a truth-seeker. Sadly, the Burkes would soon learn, that is not the type of judge the Federal Judiciary wish to retain on the bench.

As data confirms, the current judiciary believe absolute immunity protects all their judicial acts, including admitted dishonesty and deception while donning a black robe.  It is true, judicial immunity has been expanded over the decades to protect judges well beyond what framers expected. By all accounts, the public have finally taken notice and they are showing signs of  agitation and restlessness. For example, the recent events regarding the controversial abortion laws and particularly how the Fifth Circuit dealt with the emergency filings before the law was formally implemented brought severe backlash on social media and in the press. Indeed, an article written in the Washington Post on August 31, 2021 ran with the headline:

“Opinion | The 5th Circuit is staking out a claim to be America’s most dangerous court”.  See; https://2dobermans.com/woof/4c

Unquestionably, the Burkes already knew this. However, the Fifth Circuit does need the support of their sister courts to retain Stalinism over their own citizens. As this court is aware, the Burkes experienced this ‘sisterly support’ recently. Returning to  the Fifth Circuit, if you look at this week’s opinions from the Fifth Circuit, two foreclosure appeals have been affirmed in favor of the lenders. Consider, for example, how there is not a single homeowner(s) challenge against Deutsche Bank National Trust Company which has survived an appeal at the Fifth Circuit nor provided meaningful relief to homeowners since the 2008 Financial Crisis and which includes the Burkes. However, data confirms this German Bank has been sanctioned Billions of Dollars by the U.S. Government as a result of their RMBS and securitization fraud. (“This resolution holds Deutsche Bank accountable for its illegal conduct and irresponsible lending practices, which caused serious and lasting damage to investors and the American public,” said Attorney General Loretta E. Lynch.  “Deutsche Bank did not merely mislead investors: it contributed directly to an international financial crisis). See; Collins v. Mnuchin, 896 F.3d 640, 678 (5th Cir. 2018).

As such, this week’s opinions are not unexpected. However, what is more alarming is (a) what appears to be the cursory dismissal of important facts in Stafford v. Wilmington Trust, No. 20-11075 (5th Cir., Aug 31, 2021) which questioned the integrity of the lenders’ claims re Acceleration and whether notice was sent, which the homeowners disputed; “The lender sent the notice of default on January 15, 2015. However, the lender later indicated that the loan entered default in April 2015.” And; (b)  the return to unnecessary and hurtful commentary. See; “We affirm the district court. It is well past time for Alexander to pay the piper.” MTGLQ Investors v. Alexander, No. 20-20528 (5th Cir., Sep 1, 2021)

When you recognize Senior Judge Patrick ‘no free house’ Higginbotham is assigned to both panels, however, it explains everything. Even Judge Jerry Smith, dissenting in the Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 952 F.3d 591 (5th Cir. 2020)  case before the court has documented Higginbotham will forget the rule of law for ‘personal vendettas’. Actually, in the All American case, Judges Higginson and Higginbotham would issue the majority opinion only for the en banc court to vacate the same. The case is currently percolating once more after a brief round of  supplemental filings post Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020).

Research confirms, Higginbotham takes an annual excursion to sit by designation at the Eleventh Circuit.  A trip in 2019 resulted in a foreclosure panel decision, joined by Judges Branch and Rosenbaum which would strip all equity from the homeowners as a monetary sanction for essentially mowing the lawn (most likely to ensure the home did not become a ‘zombie’  property and rack up fees for non-maintenance, which usually ends up being incorrectly billed to the last homeowner and can create even more litigation as a result), and collecting mail; See; Fed. Home Loan Mortg. Corp. v. Anchrum, No. 18-10786 (11th Cir. July 23, 2019).

In summation, the sub-sections of this introduction provides a detailed timeline and history of the case combined with newsworthy legal events, cases, controversies and commentary related to this appeal. All in all, this should provide a more holistic summary of the facts for both the public and this court before delving into the legal arguments particular to this appeal.

Timeline of the Burkes Interventions, Cases and Complaints

On May 13, 2020, in Deutsche Bank Natl. Trust Co. v McGann, 2020 NY Slip Op 02765 [183 AD3d 700], Appellate Division, Second Department, Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431;

“Ordered that the appeals from the order entered February 16, 2017, and the order dated December 5, 2017, are dismissed; and it further, Ordered that the judgment of foreclosure and sale is reversed, on the law…the plaintiff’s motion for a judgment of foreclosure and sale is denied….” – This was because of a non-compliant affidavit.

 In 2011, Deutsche Bank National Trust wrongfully sued for  foreclosure against the Burkes in Federal Court. Before the bench trial, the same occurred in that case on at least two occasions, wherein foreclosure mill BDF Law Group submitted sworn affidavits by staff members and which the court rejected as perjured. The Burkes would subsequently prevail at the bench trial in 2015 and again on remand in 2017.

In short, the Burkes defeated Deutsche Bank National Trust Company twice at S.D. Tex., Houston Division only to be erroneously reversed twice by the Fifth Circuit.

The McGann decision is 9 years after 2011 and the Burkes wonder why they are still in court fighting a predatory loan by greedy lenders and their dishonest legal teams when a decade before, the Burkes informed Judge Lynn N. Hughes in a chambers conference that the loan papers presented by the lawyers for the lender were for the wrong loan amount, unsigned and void. Instead of dismissing the case against the Burkes at that moment, Hughes would tell the foreclosure mill lawyers to ‘make sure your ducks are lined up next time you appear before me’. This was after he had told the Burkes he would personally conduct their foreclosure as this ‘was not a game’. See; the ‘ClerkGate Scandal’ complaint for details (as per the timeline 9-10 August, 2021 below).

In June, 2021, the Burkes file a series of Bar complaints against Ocwen lawyers (Goodwin) as a result of the perjury committed in the underlying case in Florida and also their misconduct in a related federal case in Illinois (the “Hot Potato” doctrine case as it is referred to). The Burkes would also attempt to file a Judicial Complaint against Judge Marra after discovering the Greens had obtained access to court documents denied to the Burkes.

            On Monday, June 8, 2020, the Burkes filed individual  complaints with the Virginia State Bar against Goodwin Procter lawyers Matthew Sheldon and Thomas  Hefferon.    See; https://2dobermans.com/woof/4f

On Wednesday, June 9, 2020, and due to the national/ international pandemic, the elder Burkes filed a judicial complaint against Judge Marra into Eleventh Circuit appeal case no. 19-13015  The Burkes provided a letter asking that the filing be transmitted to the correct person and/or department for processing. They did not receive any type of acknowledgment from the person(s) or department reviewing the complaint.

Three short days later, on Thursday, June 11, 2020, the Virginia State Bar dismissed the complaints against Goodwin Procter lawyers Matthew S. Sheldon and Thomas M. Hefferon.

            On Monday, June 15, 2020, the Burkes filed a complaint against Goodwin Procter Partner and lawyer, Sabrina Rose-Smith with the D.C. Bar.  Rose-Smith is listed as active counsel for Ocwen in the S.D. Fl. case.

On Thursday, June 18, 2020, the Burkes filed a complaint against Goodwin Procter lawyer Catalina Azuero with the Florida Bar. Azuero is listed as active counsel for Ocwen in the S.D. Fl. case. The Bar would initially refuse to file the complaint electronically and proceeded to delay delivery of its decision for many months, despite the Burkes reminders. See; https://2dobermans.com/woof/4g

On June 29, 2020, the Burkes responded the same day to the Virginia Bar’s updated response re Sheldon and Hefferon of Goodwin Procter. The Burkes also copied the United States Senate Committee on Banking, Housing and Urban Affairs.  See https://2dobermans.com/woof/4a

On July 2nd, 2020, the Burkes followed up with a letter addressed for the Attn of: Circuit Mediation and Judicial Support Office, which was also filed by ECF into case no. 19-13015. Again, they asked that this complaint be directed to the [correct] person or department for processing. No reply or acknowledgment has been received.

On July 13,2020, in the lower court case, Consumer Financial Protection Bureau v. OCWEN Financial Corporation, Inc. (9:17-cv-80495), District Court, S.D. Florida Judge Marra entered and order removing case from trial calendar re: Status conference held on 7/10/20. Signed by Judge Kenneth A. Marra on 7/13/2020.

On July 29, 2020 the Committee of the Judiciary held a remote hearing of five judicial nominees. One of those was nominees is Aileen Mercedes Cannon – who was nominated to be United States District Judge for The Southern District of Florida and designated to replace ‘retiring’ Senior Judge Kenneth Marra.

On August 4, 2020, the D.C. Bar dismissed the Burkes complaint against Goodwin lawyer Sabrina Rose-Smith (Rose Smith/Burke, Burke Undocketed No. 2020-U481). The Burkes replied on the same day, copying the United States Senate Committee on Banking, Housing and Urban Affairs.

On August 6, 2020, the Burkes wrote a letter to Chief Judge William Pryor, Eleventh Circuit, expressing their dismay at the court’s silence over their many filings and letters to the court re their complaint against Judge Marra. The Burkes also used this opportunity to refile the complaint against Judge Ken Marra, for the record.

On August 12, 2020, is the date of a snail-mail letter from the Eleventh Circuit answering the Burkes August 6 letter to the Chief Judge. They ignored all the earlier correspondence, defying the executive orders during a national/international pandemic and demanding the elder Burkes, who are staying-at-home in Texas due to their age and health, post the complaint. This is also despite the 11th Circuit allowing waiver of posting record excerpts to the court with a COVID-19 declaration.

On September 2, 2020, the Burkes wrote to “Eminently Fair” (Chicago Tribune; https://2dobermans.com/woof/3s) Chief Judge Rebecca R. Pallmeyer, United States District Court, Northern District of Illinois, Eastern Division regarding the recent ‘hot potato doctrine’ Sanctions Motion regarding Goodwin Proctor’s [mis]conduct in County Of Cook v. Bank of America Corporation (1:14-cv-02280) and in conclusion the Burkes requested disqualification of Goodwin Procter’s lawyers should be mandatory as they had behaved similarly in the case herein. See; https://2dobermans.com/woof/4h  No response was ever received from the eminently fair Chief Judge.

The Burkes Renewed Motion to Intervene and Memorandum in Support was submitted to the Southern District Court in Florida on May 19, 2021, (Doc. 786 entered May 19, 2021 on the docket; RENEWED MOTION to Intervene by Joanna Burke, John Burke; Doc. 787 entered May 19, 2021 on the docket; MEMORANDUM in Support re 786 RENEWED MOTION to Intervene by Joanna Burke, John Burke) after this court denied their first appeal in an opinion issued November 2, 2020 (Burke v. Ocwen Fin. Corp., No. 19-13015 (11th Cir. Nov. 2, 2020)) and when it became clear that the Consumer Financial Protection Bureau (“CFPB”) and it’s case had essentially been dismissed by Marra.

On January 5, 2021, The Eleventh Circuit issued its Order denying the Burkes Petition for Rehearing En Banc in Case No. 19-13015, decided on November 2, 2020. See; https://2dobermans.com/woof/48

On January 27, 2021, Chief Judge William Pryor issued a dismissal of the Burkes Judicial Complaint No. 11-20-90113 re Senior Judge Kenneth A. Marra. Pryor states in his order: Any allegation that calls into question the correctness of an official decision or procedural ruling of a judge – without more – is merits-related. This is fiction. The facts are irrefutable; the Greens obtaining access to the documents denied to the Burkes is defined as – more. See Petition for Review for full details as submitted on March 4, 2021; https://2dobermans.com/woof/3y .

On March 30, 2021, the Burkes were also pursuing a Petition for Rehearing En Banc in their appeals at the Court of Appeals for the Fifth Circuit which had been affirmed in favor of the defendants in a consolidated opinion (Burke v. Ocwen Loan Servicing, L.L.C., No. 19-20267 (5th Cir. Mar. 30, 2021). See; MIS Doc. 786, p.14. Ideally, they had hoped this Rehearing would have been decided before filing their renewed putative intervention in Florida. In fact, the Burkes Petition for Rehearing En Banc would be unlawfully stricken on August 4, 2021 as detailed below.

On April 13, 2021: The Burkes filed their Petition for Rehearing En Banc at the Fifth Circuit.

On April 21, 2021: the CFPB was noticing their dissent by appealing Marra’s res judicata claims in his Order on the same day, April 21, 2021 (Doc. 777) as reason for dismissal; (April 21, 2021: Court of Appeals Docket #: 21-11314; CIVIL APPEAL DOCKETED. Notice of appeal filed by Appellant Consumer Financial Protection Bureau on 04/21/2021.).

On May 7, 2021, The Judicial Council of the Eleventh Circuit denied the Burkes Petition for Review (Re Marra; Miscellaneous Case No. 11-20-90113), with the Chief Judge William Pryor taking no part in the decision. See; https://2dobermans.com/woof/41

Around the same time, the Burkes complaint against Goodwin Procter lawyer and counsel on the record for Ocwen at the Florida Bar, Catalina Azuero was still pending. The reason for the complaint is partly answered in Ms. Azuero’s response to the Florida Bar;

“Goodwin represents Ocwen in that proceeding, and I appeared in the proceeding in February 2018. The Burkes are proceeding prose. The CFPB and Ocwen jointly opposed the motion to intervene on January 14 , 2019 (Doc. 224), and I signed that opposition.”

On May 11, 2021 the Burkes sent another request to the Florida Bar for an update by email. The following response was received;

“Mrs. Hinson is in the process of reviewing your complaint. Please allow her time to conduct a thorough review. She or I will be in contact with you in the later part of the week or early next week, once the review is completed. Thank you for your patience. Monica A. Burkes”.

As stated, on May 19, 2021, the Burkes Renewed Motion to Intervene  (MIT Doc. 787) and Memorandum in Support (MIS Doc. 786) was submitted to the Southern District Court in Florida.

On May 24, 2021 Judge Marra denied the Burkes Renewed Motion. (Doc. 788 entered May 24, 2021 on the docket; ORDER denying  John and Joanna Burke’s 786 Renewed Motion to Intervene for lack of jurisdiction. Signed by Judge Kenneth A. Marra on 5/24/2021).

On May 26, 2021 the Florida Bar dismissed the Complaint against Catalina Azuero at the inquiry stage and without verifying the facts of the case by reaching out to the witnesses in Texas. The Florida Bar’s arguments for dismissal were absurd and not authentic after nearly a year’s wait. See; https://2dobermans.com/woof/49

On June 1, 2021: Appellant’s brief filed by Consumer Financial Protection Bureau. See; https://2dobermans.com/woof/42

On June 7, 2021, the Burkes filed their Motion for Reconsideration and Motion to Disqualify Judge Kenneth A. Marra (Doc. 790 entered Jun 7, 2021 on the docket; MOTION for Reconsideration re 788 Order on Motion to Intervene, MOTION for Recusal by Joanna Burke, John Burke).

On June 10, 2021, Judge Marra denied both motions (Doc 791 entered  Jun 10, 2021 on the docket; ORDER dismissing for lack of jurisdiction 790 MOTION for Reconsideration re 788 Order on Motion to Intervene; denying 790 Motion for Recusal filed by John Burke, Joanna Burke. Signed by Judge Kenneth A. Marra on 6/10/2021).

On June 25, 2021, the Burkes filed a Notice of Appeal. (Doc 792 entered  Jun 25, 2021 on the docket; Notice of Appeal by Joanna Burke, John Burke as to 791 Order on Motion for Reconsideration, Order on Motion for Recusal.).

On July 12, 2021, the CFPB issued a consent order against GreenSky requiring the company to refund or cancel up to $9 million in loans for customers harmed by its illegal conduct, pay a $2.5 million civil penalty, and implement new procedures to prevent future fraudulent loans. See; https://2dobermans.com/woof/4b

On July 22, 2021, Appellee’s Brief filed by Appellees OCN, Ocwen Loan Servicing LLC, Ocwen Mortgage Servicing Inc. and PHH Mortgage Corporation. See; https://2dobermans.com/woof/43

On July 26, 2021, the CFPB submitted their Amicus Brief after a formal request from the Second Circuit.  See; combined Brief, letter from the Second Circuit and lower court opinion in the case of Naimoli v. Ocwen Loan Servicing, LLC, 20-1683 (2nd Cir., May 29, 2020 appeal); https://2dobermans.com/woof/47

On August 4, 2021, the Fifth Circuit would issue its bizarre, yet unequivocally unlawful and void judgment late in the day with associated mandate and without allowing the Plaintiffs to file their Petition for Rehearing En Banc by improperly striking the same. The complete timeline of events, including denied sanctions by the Burkes against opposing counsel is well-documented in the new federal civil action filed by the Burkes. In short form, the Fifth Circuit unlawfully dismissed the Rehearing in a void judgment, relying on a fraudulent ‘motion’ filed by a Fifth Circuit clerk impersonating the Burkes.

On August 4, 2021, the Fifth Circuit set the rehearing without oral argument in the case of Consumer Fin. Prot. Bureau v. All Am. Check Cashing, Inc., 952 F.3d 591 (5th Cir. 2020) for 20 September, 2021. (The related case which was stayed pending the Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020) decision at the U.S. Supreme Court). (See also; MIS Doc. 786, p. 20-24, 28-31).

On August 9, 2021, the Burkes efiled their civil action in S.D. Tex., Houston Division to void the Fifth Circuit’s unlawful August 4, 2021 judgment. See; https://2dobermans.com/woof/4i

On August 10, 2021, S.D. Texas, Houston Division docketed the new civil action, case no. 4:21cv2591. The court advised; “and randomly assigned to Judge Bennett” – who is Judge Hittner’s Boy Scout colleague, when not donning his court robe. This new civil action is referred to herein as the “ClerkGate Scandal”.

On August 11, 2021, the Fifth Circuit retracted their rehearing with a notice stating they would ‘let the parties know’. See; https://2dobermans.com/woof/44

On August 23, 2021 the Burkes file by Express Mail Disclosure of Interested Parties and Emergency Motion after failed attempts to get S.D. Tex. District Court to accept the efiled documents (Elder Abuse during a Pandemic).  See; https://2dobermans.com/woof/46

On August 26, 2021: Appellant’s reply brief filed by Consumer Financial Protection Bureau. See; https://2dobermans.com/woof/45

On September 1, 2021, the opposing parties in the ClerkGate Scandal in Texas filed their responses and Notice of Interested Parties.

Other Related Cases, News and Commentary Which Contradicts Judicial Decisions since the 2008 Financial Crisis

RESCAP Earns Over $1.3 Billion in Predatory Loan Settlements

On April 29, 2021, Reuters and Westlaw reported (https://2dobermans.com/woof/3t );

“The Residential Funding Company – whose liquidating fund is called ResCap – filed for bankruptcy in 2012 after the housing market collapsed and trusts and monoline insurers sued it seeking billions of dollars in liability because it sold their insureds bundles of home mortgages pooled together into residential mortgage-backed securities.

Williams & Connolly defended at least one other mortgage lender sued by ResCap in its litigation campaign, representing Home Loan Center Inc. ResCap also won that case.

The vast majority of the rest settled. Isaac Nesser, the Quinn Emanuel partner who led those efforts, said in a statement Wednesday that his team is “gratified to have successfully completed the prosecution of 100 cases generating over $1.3 billion in settlements and verdicts.”

The case is the last one remaining of dozens ResCap filed against mortgage lenders over the fallout of the 2008 financial crisis The case is ResCap Liquidating Trust v. Primary Residential Mortgage, Inc. in the U.S. District of Minnesota No. 0:16-cv-04070-SRN-HB, U.S. District Judge Susan Richard Nelson in Minneapolis presiding.

What is relevant here is the fact that these 100 or so cases relied upon detailed audit and expert reports confirming mortgage lender application fraud which would form a material part of the court’s opinion(s), in favor of ResCap. This is not the case when pro se litigants like the Burkes present the same arguments. The Burkes were subject to lender application fraud, known as predatory lending or ‘financial institution fraud’.

(In financial institution fraud (FIF) investigations, the Bureau continues to concentrate its efforts on organized criminal groups that prey on banks and engage in patterns of activity that lead to large aggregate losses. When FIF schemes involve single actors, the FBI prioritizes cases with high losses or significant community impact, see https://2dobermans.com/woof/3u  ).

Homeowner Victories Are Short-lived Since The 2008 Financial Crisis and the Decisions to Nullify Those Wins Are By Appellate Courts

For those few homeowners who do prevail at the lower court like the Burkes, this is overturned rapidly by the appellate court(s). This was witnessed in the following foreclosure case. Linza v. PHH Mortg. Corp., C078067, at *1 (Cal. Ct. App. Oct. 23, 2017)  See

(“Plaintiff Phillip Linza entered into a loan modification agreement with defendant PHH Mortgage Corporation (PHH) that reduced his monthly payments on his home loan. Soon after, PHH incorrectly notified him that his payments were substantially higher than the amount actually due and sent two notices of intention to foreclose; each contained incorrect information. Linza stopped making any payments. He first contacted PHH and then filed a claim with the Department of Corporations. The matter was not resolved to Linza’s satisfaction and he sued PHH for breach of contract and various torts. The jury returned a verdict in his favor of over $16 million, including $15.7 million in punitive damages. The trial court granted PHH’s motion for a judgment notwithstanding the verdict (JNOV) as to the tort causes of action, but denied its motion for a new trial on the contract causes of action.”).

Part of the conversation Linza had with PHH included; When Linza threatened legal action, Thomas (PHH) replied, “stand in line.” Thomas said PHH was a multi-billion dollar company with deep pockets and a “bus load” of attorneys on retainer. He told Linza that if Linza thought he could find an attorney to take on PHH to go ahead.

True to his words, PHH first sued the foreclosure mill BDF Law Group as a result of the jury award and retained attorney Loren Kieve who stated in court filings;

“PHH has been damaged by the Barrett firm’s professional errors and omissions. It has paid the Barrett firm sums that were completely useless. It has paid the Goodwin firm over $650,000 to rectify the problems caused by the Barrett firm’s professional negligence, and is incurring additional fees to appeal the judgment. It has been subjected to a judgment of $158,902.40, together with attorneys’ fees and costs of $178,731, both of which are bearing interest.” PHH Mortg. Corp. v. Barrett, Daffin, Frappier, Treder & Weiss, LLP, No. 15-cv-04711-JD (N.D. Cal. Apr. 20, 2016) See Amended Complaint, Jan 14, 2016. (Case 2:16-cv-00832-KJM-EFB   Document 25   Filed 01/14/16   Page 1 of 11). See; https://2dobermans.com/woof/3z .

As confirmed by philanthropist Loren Kieve of Kieve Law Offices, PHH retained Goodwin Procter, LLP to obtain a reversal on appeal, award of attorney fees and costs along with a new trial. The value of the mortgage at the time was only $278,000.  Linza would file a Petition for Review in Linza v. PHH Mortg. Corp., S245770 (Cal. Jan. 31, 2018); “Petition for review denied” was the four words he received. See; https://2dobermans.com/woof/40 .

It should be noted, the parties named are the same parties and/or counsel in the Burkes cases in Texas and Florida e.g. BDF Law Group, PHH Mortgage Corporation (Ocwen Loan Servicing, LLC) and Goodwin Procter, LLP and as with Linza, the pro se homeowners are being reversed in the federal appellate circuit, thus mandating a wrongful foreclosure, despite the true facts of lender application fraud, perjury and the opinions in prior lower court decisions (in Texas) siding with the homeowners in law and after a bench trial.

The Burkes truly question whether Williams v. Pennsylvania, 136 S. Ct. 1899, 1905-06 (2016) (“Due process guarantees “an absence of actual bias” on the part of a judge. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955) has been completely discounted by the circuit courts and/or the standard of bias has been misapplied, as detailed herein. Any Judge who question the majority soon find they are no longer welcome in their courthouse(s).

Fake Affidavits and Fraud on the Court in Texas Federal Bankruptcy Court is Quickly Covered Up by the District Court

Another post financial crisis example of an honest judge who would not be rehired for a second term would be Hon. Elizabeth Wall Magner, U.S. Bankruptcy Judge, E.D. Louisiana in the case In Re Wilson, CASE NO. 07-11862, Section A, AT *26 (Bankr. E.D. LA. Apr. 7, 2011)

“With each revelation, one hopes that the bottom of the barrel has been reached and that the industry will self correct. Sadly, this does not appear to be reality. This case is one example of why their conduct comes at a high cost to the system and debtors”, and;

“The fraud perpetrated on the Court, Debtors, and trustee would be shocking if this Court had less experience concerning the conduct of mortgage servicers. One too many times, this Court has been witness to the shoddy practices and sloppy accountings of the mortgage service industry.”

In that case, Magner requested sanctioning the rapscallion bank millions of dollars for the repeated perjured testimony, fake documents and other misconduct before her, but the District Court would extinguish all her requests for monetary sanctions and destroy the evidence.

STATEMENT OF THE ISSUES

1. Whether the district court erred in stating that the court lacked jurisdiction.

2. Whether the district court judge should have self-recused or disqualified himself, or in the alternative, whether he should have granted the Burkes Motion to Disqualify rather than deny it.

3. Whether this court has jurisdiction to decide the Plaintiff-Intervenors appeal.

4. Whether this court is impartial and can fairly decide this appeal, which would question past orders and opinions of this court and the Judicial Council.

STATEMENT OF THE CASE

Judge Kenneth A. Marra (“Marra”) dismissed the Burkes Renewed Motion to Intervene with Memorandum in Support for lack of jurisdiction, thus not reaching the merits of the Burkes filings. Marra also denied the subsequent Motion to Disqualify after he failed to self-recuse, despite the Burkes implied warnings it was mandated that he should automatically recuse. As such, this initial brief relies wholly on the Burkes Renewed Motion to Intervene and Memorandum in Support, along with their denied Motion for Reconsideration and Motion to Disqualify. In short form, there is no need to repeat the Burkes arguments as they form part of the Appendix submitted in this appeal for consideration in conjunction with this brief. Rather, this brief addresses the case law and rules surrounding Marra’s decisions and why his orders were erroneous and require correction on appeal.

STANDARD OF REVIEW

The first issue on review is jurisdiction. See; Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1285 (11th Cir. 2017) (“We are obliged to review issues pertaining to a court’s subject-matter jurisdiction de novo. Peebles v. Merrill Lynch, Pierce, Fenner & Smith Inc. , 431 F.3d 1320, 1324 (11th Cir. 2005). ”) and;

A ruling denying intervention of right is reviewed de novo. See; Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1292 (11th Cir. 2017) Denial of permissive intervention, on the other hand, is reviewed for clear abuse of discretion. See; Georgia v. U.S. Army Corps of Eng’rs , 302 F.3d 1242, 1249 (11th Cir. 2002).”).

The second issue is appealability; “It is well-settled that one who is not a party to a lawsuit, or has not properly become a party, has no right to appeal a judgment entered in that suit. ” Edwards v. City of Houston, 78 F.3d 983, 993 (5th Cir. 1996);  “The would-be intervenors in Railroad Trainmen, by contrast, were not parties and could not appeal from the final judgment; thus they were entitled to appeal immediately the denial of their motion to intervene.” Shores v. Sklar, 844 F.2d 1485, 1491 (11th Cir. 1988).

The final issue on review is whether Marra is protected by absolute [judicial] immunity for all acts in a court setting and “Whether an official is entitled to absolute immunity is a question of law that we review de novo. Stevens v. Osuna, 877 F.3d 1293, 1301 (11th Cir. 2017).” Watson v. Fla. Judicial Qualifications Comm’n, No. 17-13940, at *3 (11th Cir. Aug. 15, 2018).

SUMMARY OF ARGUMENT

Judge Marra did not reach the merits of the Burkes Motions and hence the summary of the argument is available in those lower court filings, as listed in the introduction and which are also included in the Appendix.

ARGUMENT

LACK OF JURISDICTION IS A QUESTION OF LAW

Relying upon ‘lack of jurisdiction’, Marra’s denial[s] did not reach the merits of the Renewed Motion to Intervene and the Memorandum in Support. Marra’s order is transcribed below, verbatim;

ORDER DENYING JOHN AND JOANNA BURKE’S RENEWED MOTION TO INTERVENE FOR LACK OF JURIDSICTION [DE 786]

THIS CAUSE is before the Court on a pro se renewed motion to intervene filed May 19, 2021 by Joanna Burke and John Burke [DE 786].

By order entered April 21, 2021, this Court entered final judgment in favor of the Ocwen Defendants and closed this case [DE 777]. That ruling is now on appeal before the Eleventh Circuit Court of Appeals [DE 781, 784].

The filing of a notice of appeal divests the district court of jurisdiction to decide matters related to the appeal. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)). While certain exceptions to this rule are noted, United States v. Reed, 404 Fed. Appx 464, 465 (11th Cir. 2010)(issues collateral to the appeal); United States v. Noblitt, 343 F. Appx. 544, 546 (11th Cir. 2009) (motions under Rule 60(b); issues  collateral to the appeal), they do not apply here.

Because the present motion does not fall within any of the recognized exceptions, the Court lacks jurisdiction to entertain the motion.

It is accordingly ORDERED AND ADJUDGED:

The renewed  motion to intervene submitted by John and Joanna Burke [DE 786] is DENIED for lack of jurisdiction.

DONE AND ORDERED in Chambers at West Palm Beach, Florida this 24th day of May, 2021.

 This Court has Jurisdiction

See; Stone v. First Union Corp., 371 F.3d 1305, 1308 (11th Cir. 2004) (“II. Jurisdiction Orders denying a motion for intervention are not final orders. EEOC v. Eastern Airlines, 736 F.2d 635, 637 (11th Cir. 1984); see also 28 U.S.C. § 1291 (stating that circuit courts have jurisdiction to review final decisions of district courts).

Nonetheless, under the aptly-named “anomalous rule,” this court has provisional jurisdiction to review the district court’s denial of a motion to intervene based on right. Eastern Airlines, 736 F.2d at 637; see also AAL High Yield Bond Fund v. Deloitte Touche LLP, 361 F.3d 1305, 1309 n. 4 (11th Cir. 2004); FTC v. Am. Legal Distrib. Inc., 890 F.2d 363, 364 (11th Cir. 1989).

If the district court erred in denying intervention based on right, this court has jurisdiction to correct the error. Eastern Airlines, 736 F.2d at 637. If the district court did not err, however, then this court’s jurisdiction “evaporates.” Id. The court also has jurisdiction if the district court abused its discretion in denying permissive intervention. Stallworth v. Monsanto Co., 558 F.2d 257, 263 (5th Cir. 1977) (holding that the court had jurisdiction to review the denial of permissive intervention where the plaintiffs requested intervention based on right and permission).

In Davis v. Butts, this court appears to have revised the Monsanto rule, holding that there is no appellate jurisdiction where the plaintiffs requested permissive intervention alone. Davis v. Butts, 290 F.3d 1297, 1299 (11th Cir. 2002).

The Davis decision, however, did not alter this court’s jurisdiction to review denials of permissive intervention if the plaintiffs requested intervention based on right and permission. Id.

Here, the plaintiffs appeal the denial of their motion for intervention based on right and permission, and, thus, we have jurisdiction to hear both claims.”)

Res Judicata Does Not Apply

Marra’s order does not specify with or without prejudice and hence res judicata does not apply to the denial as he never reached the merits of the Burkes filings;

Powrzanas v. Jones Util. & Contracting Co., No. 20-10120, at *3-4 (11th Cir. July 27, 2020) (“A judgment dismissing a case with prejudice acts as a judgment on the merits for purposes of claim preclusion; Anthony v. Marion Cty. Gen. Hosp., 617 F.2d 1164, 1170 (5th Cir. 1980). On the other hand, a dismissal “without prejudice is not an adjudication on the merits and thus does not have a res judicata effect.” Hughes v. Lott, 350 F.3d 1157, 1161 (11th Cir. 2003).”)

This is a ‘Silly Rule’ says Law Professor Bryan Lammon

When Marra denied the Burkes Renewed Motion to Intervene (MIT Doc. 787) with Memorandum in Support, (MIS Doc. 786) the Burkes included the “anomalous rule” in their Motion for Reconsideration. Despite the compelling arguments, case law and supporting evidence, Marra would deny the Reconsideration, incurring unnecessary costs, delay and waste. The Burkes present a recent Eleventh Circuit case, which by simply reviewing the standard of review and jurisdiction section, confirms Marra should not have denied the Motion(s);

See Sterling v. Sellers, No. 17-15309, at *4-5 (11th Cir. June 29, 2020) (“II. Standard of Review & Jurisdiction We have provisional jurisdiction under the “anomalous rule ” to review an order denying intervention. Fed. Sav. & Loan Ins. Corp. v. Falls Chase Special Taxing Dist., 983 F.2d 211, 214 (11th Cir. 1993). If the district court’s decision was correct, we must dismiss the appeal for lack of jurisdiction. See id. If the district court erred in denying a motion to intervene, we retain jurisdiction and must reverse. See id. We review a denial of a motion to intervene as of right de novo, whereas the denial of a motion for permissive intervention is reviewed for an abuse of discretion. United States v. City of Miami, 278 F.3d 1174, 1178 (11th Cir. 2002); Walters v. City of Atlanta, 803 F.2d 1135, 1150 n.16 (11th Cir. 1986).”).

In their Motion for Reconsideration, the Burkes referred to Professor Bryan Lammon’s article(s) on the subject of the ‘anomalous rule’; “The Eleventh Circuit applied its “anomalous rule” for intervention appeals, which makes jurisdiction turn on the merits of intervention. That’s sort of silly, and there’s a simpler option.”.

He cites to United States v. 60 Auto. Grilles, No. 19-12023 (11th Cir. Jan. 15, 2020) and in related article HTTPS://FINALDECISIONS.ORG/THE-WEEK-IN-FEDERAL-APPELLATE-JURISDICTION-JUNE-14-20-2020/  with similar comments on two more opinions from this court;

Hooks v. Brewer, 2020 WL 3397738 (11th Cir. June, 19, 2020), available at the Eleventh Circuit and Westlaw and Gumm v. Jacobs, 2020 WL 3265004 (11th Cir. June 17, 2020), available at the Eleventh Circuit and Westlaw. The Law Professor’s comments in Gumm seem particularly relevant to this case;

“And in Gumm v. Jacobs, the Eleventh Circuit applied its “anomalous rule” for intervention appeals. In these appeals, the Eleventh Circuit applies an odd rule under which jurisdiction turns on the merits:

We have provisional jurisdiction under the “anomalous rule” to review an order denying intervention. If the district court’s decision was correct, we must dismiss the appeal for lack of jurisdiction. If the district court erred in denying a motion to intervene, we retain jurisdiction and must reverse.

This is a silly rule. The court is reviewing whether the district court committed an error, which requires jurisdiction. To conclude that you lack jurisdiction only after reviewing the district court’s decision is jurisdictional make believe that makes things more complicated than they need to be.”

The Burkes agree.

The Collateral Aspects of the Burkes Intervention Controls

In denying intervention, Judge Marra’s order cited Griggs; The filing of a notice of appeal divests the district court of jurisdiction to decide matters related to the appeal. United States v. Tovar-Rico, 61 F.3d 1529, 1532 (11th Cir. 1995) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982) (per curiam)).

However, Appeal is permitted for orders that are collateral to the merits of the proceeding. See; Bank of America, N.A. v. Veluchamy, 643 F.3d 185, 188 (7th Cir. 2011) (“ We begin where we must — with our jurisdiction to hear their appeal. The post-judgment proceedings continue below, so we would normally lack the power to hear the appeal for want of a final judgment resolving the parties’ claims. 28 U.S.C. § 1291; Johnson v. Jones, 515 U.S. 304, 309, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995). Immediate appeal is permitted, however, for orders that are collateral to the merits of the proceeding. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). An order is collateral when it “conclusively determines a disputed question that is separate from the merits of the case and is effectively unreviewable on an appeal from the final judgment.” Jones v. Clark, 630 F.3d 677, 679 (7th Cir. 2011).”)

With the opportunity to review CFPB and Ocwen’s appeal briefings, along with CFPB’s reply brief  (filed most recently on August 26, 2021), clearly confirms the Burkes putative intervention does not interfere with the controlling “aspect” currently on appeal by the CFPB, namely ‘res judicata’.

The Burkes have never been accepted as a party in this case and a detailed review of the Burkes Renewed Motion to Intervene, (MIT Doc. 787) Memorandum in Support (MIS Doc. 786) and Motion for Reconsideration do not claim anything similar in addressing the reasons intervention is necessary. The Burkes wish to recover documents and files and/or evidence from PHH/Ocwen and as such would not disturb the main lawsuit by CFPB, as shown when the Greens obtained their information from the same proceeding.

In the alternative, if this case were to proceed with the Burkes as Intervenors and subject to the CFPB’s pending appeal before this court, then monetary relief and other claims could be raised by the Burkes as part of their Intervention. However, that would be part of any agreed jury trial award or settlement and again, would not be overburdensome to the parties or the court.

In short, the res judicata is about the D.C. settlement and as the Burkes clearly stated, they have never received a dime from any settlement and all civil actions have been private.

Marra’s order stating that the collateral ‘exceptions’ do not apply here is erroneous.

The Burkes Intervention Can Be Treated as a Separate Action

“It is well established, for example, that even if a court has no jurisdiction over a plaintiff’s claim , it may treat the pleading of an intervenor under Rule 24 as a separate action if there is a separate basis of jurisdiction as to the intervenor’s claim. ” Summit Office Park v. U.S. Steel Corp., 639 F.2d 1278, 1287 (5th Cir. 1981); (footnote; McKay v. Heyison, 3 Cir. 1980, 614 F.2d 899, 906-07; Miller Miller Auctioneers, Inc. v. G. W. Murphy Industries, Inc., 10 Cir. 1973, 472 F.2d 893, 895; Atkins v. State Board of Education, 4 Cir. 1969, 418 F.2d 874; Fuller v. Volk, 3 Cir. 1965, 351 F.2d 323, 328-29; Corporacion Venezolana de Fomento v. Vintero Sales Corp., S.D.N.Y. 1979, 477 F. Supp. 615, 622; 7A C. Wright A. Miller, Federal Practice and Procedure § 1917, at 584-86 (1972). Some of these cases say that the district court has “discretion” to treat an intervenors pleadings as a separate action, but that is because intervention in these cases was not possible as of right under Rule 24(a), but only by leave of court under Rule 24(b). See McKay v. Heyison, 3 Cir. 1980, 614 F.2d at 906-07.).

Denial of Jurisdiction is Treason to the Constitution

“It is most true that this Court will not take jurisdiction if it should not but it is equally true, that it must take jurisdiction if it should. The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the constitution.

We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us.

We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution.

                   Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.” Cohens v. Virginia, 19 U.S. 264, 404 (1821).

FRAUD ON [BY] THE COURT HAS NO TIME LIMIT NOR RESTRICTION

See; Buck v. Thaler, No.11-70025, at *13 (5th Cir. Sep. 14, 2011) (“Fraud on the court allows the district court to set aside a judgment without a strict time bar.”); Citing; Jackson v. Thaler, 348 F. App’x 29, 34 (5th Cir. 2009)  and;

                   Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895, 900 (2d Cir. 1985) (“Fraud on the court principles, while conceived to vacate judgments induced by fraud, can easily be applied to this case. As stated in Hazel-Atlas, 322 U.S. at 248, 64 S.Ct. at 1002, the rule should be characterized by flexibility and an ability to meet new situations demanding equitable intervention.

                   In tracing the development of a court’s equity power to combat fraud in the enforcement of judgments, the Supreme Court recognized that the relief devised may “[take] several forms: [including] setting aside a judgment to permit a new trial, altering the terms of a judgment, or restraining the beneficiaries of a judgment from taking any benefit whatever from it.” Id. at 245, 64 S.Ct. at 1001.

In essence, our holding here merely restrains Capitol from benefiting from the district court’s erroneous decision to deny Leber-Krebs’ original motion to confirm based on Capitol’s allegedly false garnishee statement.

Although Capitol was not a party to that original proceeding, it was required under CPLR 6219 to serve a statement in compliance with the attachment order.

Thus, it should not now be heard to assert the order’s invalidity, if such was caused by its fraud.”).

This is similar to the case at hand, with the exception that the statement on the record in a court order by Marra is already facially proven. As such, the relief requested is this court should void the judgment, allow the Burkes to intervene [assuming the intervention is not mooted based on the current appeal between the CFPB and Ocwen before this court] and ensure the biased judge is removed from the case;

                   See; Leber-Krebs, Inc. v. Capitol Records, 779 F.2d 895, 901 (2d Cir. 1985); “Accordingly, the order dismissing plaintiff’s complaint is reversed and the case is remanded to the district court for an evidentiary hearing to examine whether Capitol’s first garnishee statement was fraudulent. If the district court so finds, the court is free to enter judgment in the amount plaintiff would have obtained if Capitol had filed an accurate statement and Leber-Krebs had successfully moved to confirm.”

THE CONSTITUTIONAL QUESTION [RATIFICATION] REMAINS OUTSTANDING AND THE CFPB REMAINS UNCONSTITUTIONAL

The Constitutional Question still swirls around in Federal Courts nationwide and the Burkes conveyed this in their MIS, Doc 786, p. 17 and p. 28-31. Indeed, as shown in the timeline above, the Fifth Circuit has stayed its en banc hearing in an Order dated August 11, 2021, no doubt while it waits to see what the U.S. Supreme Court does with the new petition(s). It is perplexing as to why this appeal and the related CFPB appeal is still proceeding. Without doubt, supplementary filings will most likely be necessary in the future should this court decide to defer issuing an opinion (after briefing is completed) in anticipation of the highest court’s next orders in the related cases.

[SELF] RECUSAL OF A JUDGE

Senior United States District Judge Kenneth A. Marra is a veteran of the courts. He was also expected to retire early in 2021, when his intended replacement, Judge Aileen Mercedes Cannon was confirmed and took her place on the bench in S.D. Fl. District Court.  Clearly, that has been delayed. This is very important, because it allowed Marra to unlawfully dispose of the Burkes Renewed Motion.

In his  response, Judge Kenneth A. Marra stated;

“In addressing a motion to recuse pursuant to 28 U.S.C. §455(a), the Court is tasked with determining “whether an objective, disinterested lay observer fully informed of the facts underlying the grounds on which recusal was sought would entertain a significant doubt about the judge’s impartiality. ” – Diversified Numismatics, Inc. v. City of Orlando, 949 F.2d 382, 385 (11th Cir. 1991).

As a general proposition, absent a showing of pervasive bias and prejudice, a judge’s rulings in the same or a related case may not serve as the basis for a recusal motion. – McWhorter v. City of Birmingham, 906 F.2d 674, 578 (11th Cir. 1990).

Applying these standards here, the Court denies the motion to recuse because the Burkes have not shown that an objective, disinterested lay observer would have any doubt regarding the Court’s impartiality.

                   The Burkes rely solely on the Court’s unfavorable rulings on intervention requests in this case, which is an insufficient premise for a recusal motion. See e.g. Jerome v. Barcelo Crestline, Inc., 507 Fed. Appx. 861, 865 (11th Cir. 2013) (citing Diversified Numismatics, 949 F.2d at 385).”

The Burkes object to his summation. In  a similar case complaining about Marra before this court, the 3-panel comprising of author [Chief] Judge William Pryor, Judge Gerald Tjoflat and [sitting by designation] Fifth Circuit Judge Rhesa Barksdale, the court opined;

“Lauer’s arguments also fail on the merits. “[A]dverse rulings alone do not provide a party with a basis for holding that the court’s impartiality is in doubt.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004)

…And “bias and prejudice, to be a basis for disqualification, must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” United States v. Clark, 605 F.2d 939, 942 (5th Cir. 1979).

The comments that Lauer cites do not suggest that Chief Judge Zloch was personally biased.” See; Sec. & Exch. Comm’n v. Lauer, 610 F. App’x 813, 13 (11th Cir. 2015) [Emphasis added].

In summary and considering the above, this court would agree with Marra that an extrajudicial source and pervasive and/or prejudice and personal bias is required to mandate recusal. Furthermore, any acts while performing judicial acts obtain absolute immunity. This argument fails, magnificently.  Note: Timeliness is never discussed by Marra, so it is waived and as such, there is no legal requirement for the Burkes to address it here.

Judge Marra Denied the Motion, Not the Court

First, Judge Marra claims ‘the court’ denied the motion. That is a falsehood. Self-recusal or a Motion to Disqualify and/or Recuse is directed personally at a specific Judge and that Judge is responsible for deciding whether or not to recuse. A Judge is an officer of the court, as well as attorneys. However, a Judge is not the court. People v. Zajic, 88 Ill. App. 3d 477, 410 N.E.2d 626 (1980).

Pervasive Bias, Prejudice and Personal Bias Exists

First, Eleventh Circuit Case Law is Present Rejecting Marra’s Claims.

Second, reading Loranger v. Stierheim, 10 F.3d 776, 780 (11th Cir. 1994) conflicts with the narrowed views of Marra when considering recusal;

“However, the fact that a judge’s remarks or rulings occur in a judicial context does not necessarily insulate them from scrutiny. In rare cases, we have required recusal when “such pervasive bias and prejudice is shown by otherwise judicial conduct as would constitute bias against a party.” Davis v. Board of Sch. Comm’rs, 517 F.2d 1044, 1052 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976).”.

Marra contradicts his written ‘codicil’ order (Doc. 411, July 3, 2019) by already previously granting the Greens access to documents denied to the Burkes and then he remains on the renewed intervention which questions his impartiality. He is a witness in his own proceedings. That cannot stand as discussed below.

Blanking Out Wording Misconstrues the Act

Third, Marra intentionally blanks out the most critical wording in 28 U.S.C. § 455 and which confirms Marra was left no choice in this case. He was legally mandated to recuse, namely, ‘personal knowledge of disputed evidentiary facts concerning the proceeding’;

See U.S. v. Carlton, 534 F.3d 97, 98 n.1 (2d Cir. 2008) (“28 U.S.C. § 455 governs the disqualification of federal judges . Subsection (a) requires that any “judge . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”

The statute also enumerates specific circumstances in which a judge must disqualify himself, including when a judge “has a personal bias or prejudice concerning a party,

or personal knowledge of disputed evidentiary facts concerning the proceeding.”

28 U.S.C. § 455(b)(1).”)

In this case, Marra refused to [self] recuse  in a case where he was clearly biased and prejudiced. He allowed the Greens to obtain court documents he would deny the Burkes either by right or permissively.

A Judge as a Witness Requires Recusal

In other words, Judge Marra unlawfully denied the Burkes renewed intervention and then “weighs his own recollection of events in making his findings” by refusing to recuse; See; Tyler v. Swenson, 427 F.2d 412, 415-16 (8th Cir. 1970);

“”Indeed, a judge presiding at a trial is not a competent witness, for the duties of a judge and a witness are incompatible. If he testifies he would have to pass upon the competency of his own testimony; and as a witness he might be regarded a partisan, and would be subject to embarrassing conflicts with counsel.

The danger to the dignity of the bench, of subjecting its impartiality to doubt and of placing the defendant at an unfair disadvantage by admitting the presiding judge as a witness is very obvious.”

In the instant case, it is urged that because the trial judge did not take the stand as a witness the above rules are not applicable.

However, the unfairness of this is compounded when the judge, as was done here, weighs his own recollection of events in making his findings.”

The court clarifies it’s decision;

“We thus make clear, as do the above cases, that a trial judge is not to be disqualified simply because he is familiar with the proceedings and supplements the record with observations.

Nor do a trial judge’s supplemental statements into the record make him a material witness, unless he offers disputed and material testimony which is challenged by the petitioner.

In the instant case it is particularly significant that the trial judge’s recollection was the only testimony which refuted petitioner’s claim, a claim which challenged the propriety of the judge’s prior conduct.

Under these circumstances we hold that there was not a fair evidentiary hearing and determination within the spirit and intendment of 28 U.S.C.A. § 2254.”;

Judge Marra’s Codicil is a Supplemental Statement Into the Record

The Burkes have repeatedly referred to Judge Marra’s ‘codicil’. (Doc. 411, July 3, 2019); (MIS Doc. 786, p.15, 18, 24, and 25). This is clearly defined as ‘supplemental statements into the record…’.

See the Burkes Motion for Reconsideration, in part;

THE BURKES RENEWED MOTION IS ‘RENEWING’ THE FACTS FOR THE FIRST TIME AND WHICH WERE NOT CONSIDERED ON APPEAL

For example, the Burkes raised Judge Marra’s codicil as discussed in depth above and in the memorandum. The Eleventh Circuit refused to review as they claimed it was untimely and could not be considered (at that time). The Burkes renewed motion and memorandum in support is the first opportunity to renew those arguments and the Burkes did so in a timely manner.

And worthy of repeating herein is the ‘codicil’  (Doc. 411, July 3, 2019) wording by Judge Marra;

“In addition to the grounds stated in the Court’s Order Denying Intervention (ECF No. 375), the Court notes that intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the proposed Intervenors. (See ECF No. 408 at 4).” -Signed by Judge Kenneth A Marra, United States District Judge, July 3, 2019.

The facts in Tyler mirror the case at hand. Marra’s codicil was disputed vehemently by the Burkes and checks all the legal and statutory boxes which mandate recusal as discussed in herein ( and MIS Doc. 786, p.15, 18, 24, and 25) .

Judicial Recusals, Disqualifications and Judicial Complaints are Misapplied in Federal Court Orders and Opinions

Judges judging themselves is an auditing conflict which is not justifiable under any circumstances and opposite to what due process intended.

See Isom v. Arkansas, 140 S. Ct. 342, 344 (2019);

“I write [Justice SOTOMAYOR]…to encourage vigilance about the risk of bias that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.”; and

See; Williams v. Pennsylvania, 136 S. Ct. 1899, 1905-06 (2016) (“Due process guarantees “an absence of actual bias” on the part of a judge. In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

Bias is easy to attribute to others and difficult to discern in oneself. To establish an enforceable and workable framework, the Court’s precedents apply an objective standard that, in the usual case, avoids having to determine whether actual bias is present. The Court asks not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, “the average judge in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’ ” Caperton, 556 U.S., at 881, 129 S.Ct. 2252.

Of particular relevance to the instant case, the Court has determined that an unconstitutional potential for bias exists when the same person serves as both accuser and adjudicator in a case.

See Murchison, 349 U.S., at 136–137, 75 S.Ct. 623. This objective risk of bias is reflected in the due process maxim that “no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome.” Id ., at 136, 75 S.Ct. 623.

The due process guarantee that “no man can be a judge in his own case” would have little substance if it did not disqualify a former prosecutor from sitting in judgment of a prosecution in which he or she had made a critical decision. This conclusion follows from the Court’s analysis in In re Murchison . ”)

As stated, Marra’s codicil opinion is a critical document and he should be disqualified because no man can be a judge and/or witness in his own case.

Whether it is deciding on disqualification motions or formal complaints made to the Chief Judge of a Circuit Court, the data extracted from what the Burkes refer to as the ‘Breyer Report’  is extremely disquieting;

(See; https://2dobermans.com/woof/4d )

Implementation of the Judicial Conduct and Disability Act of 1980 A Report to the Chief Justice, The Judicial Conduct and Disability Act Study Committee, Stephen Breyer, Chair, Associate Justice, Supreme Court of the United States. Report issued September 2006.

See; Impeachment and removal of S.D. Fl. Judge Alcee Lamar Hastings (Hastings became the sixth federal judge in the history of the United States to be removed from office by the Senate); Matter of Certain Complaints, 783 F.2d 1488, 1491 (11th Cir. 1986) (“The first of these consisted of original subpoena enforcement proceedings commenced in this court by the Investigating Committee of the Judicial Council of the Eleventh Circuit (the “Investigating Committee” or “Committee”) under the asserted authority of the Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 28 U.S.C. § 332(d)(1), 372(c)(9)(A) (“the Act “). ”)

The Breyer Report (See; https://2dobermans.com/woof/4d ) concluded that Judicial Complaints were incorrectly dismissed at an error rate of close to 30 percent, which is far too high. Those kinds of cases, the Breyer Report said, are important because of publicity surrounding them, perhaps leading the public to form a view of the judiciary’s handling of all cases upon the basis of these few. However, this error rate would be low when compared with the near 100 percent dismissal rate of Judicial complaints per the data screenshot below;

Dr. Richard Cordero, Esq. originally compiled this data and demonstrated that most complaints against federal judges are dismissed. In 2018, Dr. Cordero observed that, for the 11-year period that ended November 30, 2017, the District of Columbia Circuit had received 478 complaints of judicial misconduct, 100% of which were dismissed and denied petitions for review. Because it was unlikely that not a single complaint was worthy of review, Dr. Cordero filed a complaint over this statistical improbability. The Court’s response was to refer his complaint to the Eleventh Circuit, which reviewed it and issued an extensive analysis which ended with a dismissal (See; Order, May 6, 2019 https://2dobermans.com/woof/4e ), thus reinforcing the need for judicial reform by Congress.

Without doubt, the Burkes have not only witnessed the same problems in this and the Fifth Circuit, they have been subjected to Judicial Complaint dismissals and denied Petitions for Review issued by both Circuits. The Burkes assert the courts are misinterpreting the rules and laws which are currently in place and relying on erroneous prior legal opinions to do so. It should be noted, based on the opinions the Burkes have reviewed, this is not particular to the Fifth and Eleventh Circuit.

As discussed above, D.C. is just as guilty. The misinterpretation of the rules is a nationwide problem which is affecting many cases where due process has been wrongfully denied. As such, the Burkes, members of Congress and the public are advocating for change. Judges have been provided many years to reign in “corruption, bias, and hypocrisy” (Sen. Grassley). As such, judicial oversight is essential.

The Judicial Transparency and Ethics Enhancement Act

In particular, Former Senate Judiciary Committee Chairman Chuck Grassley of Iowa reintroduced;

“…the Judicial Transparency and Ethics Enhancement Act, a bill that would establish within the judicial branch an Office of Inspector General to assist the Judiciary with its ethical obligations as well as to ensure taxpayer dollars are not lost to waste, fraud, or abuse. This bill will help ensure that our federal judicial system remains free of corruption, bias, and hypocrisy.”

See; https://2dobermans.com/woof/3w   and https://2dobermans.com/woof/3x

The Burkes dispute the wording “remains free…” but that aside, the Bill has been percolating since reintroduction. The Burkes suggest it is necessary to pass this Act, to restore at least a smidgen of the public’s faith in the Judiciary. That stated, the Burkes arguments on intervention mandated Marra’s recusal, based on the slim allowances provided by past judicial opinions and in conjunction with the  § 455 statute and the Breyer report.

See the Breyer report, “that the judge ruled against the complainant…because the judge doesn’t like the complainant personally, is not merits-related.” See; p.54; https://2dobermans.com/woof/4d

The Appearance of Judicial Bias at the Eleventh Circuit

For example, if you return to the Lauer case, Judge Tjoflat was on the 3-Panel which decided to support Marra’s refusal to recuse. Yet, returning to the “appearance of bias”, a review of 11^th Cir. appeals show Judge Marra sitting by designation in several cases around the period of Lauer, and in all those cases, Judge Tjoflat was a panel member alongside Marra.  See; Ala. Educ. Ass’n v. Bentley (In re Hubbard), 803 F.3d 1298 (11th Cir. Oct 14, 2015); United States v. Campbell, 765 F.3d 1291 (11th Cir. 2014); Heatherwood Holdings, LLC v. HGC, Inc., 746 F.3d 1206 (11th Cir. 2014); Harrison v. Culliver, 746 F.3d 1288 (11th Cir. 2014); Zann v. Deputy, No. 12-16013 (11th Cir. Aug. 16, 2013); Broussard v. Maples, 535 F. App’x 825 (11th Cir. 2013); United States v. Lang, 732 F.3d 1246 (11th Cir. 2013).  Today, there are  12 active judges and 9 senior judges (11^th Cir website data). That’s 21 judges available to sit on a 3-panel and yet Judge Tjoflat found it without merit to self-recuse in Lauer and allow another judicial colleague to sit?  That is err.

Judge Tjoflat

It is even more alarming after you read the detailed case authored by Judge Tjoflat himself some  37 years earlier, discussing recusal and appearance of partiality in-depth, see; Fredonia Broadcasting Corp. v. RCA Corp., 569 F.2d 251 (5th Cir. 1978).  Fredonia touches on the majority of the cases cited herein, in support of recusal, as well as discussing the Code of Professional Responsibility (“A lawyer should avoid even the appearance of impropriety.”) and ABA Code of Professional Responsibility for lawyers. Judges are lawyers.

Then there’s the case of Judge Tjoflat sitting on the panel in Bolin v. Story, 225 F.3d 1234, 1237 (11th Cir. 2000) and where it was alleged;

“Further, the complaint alleges that “[i]t has been clearly established that appellate court judges in the Eleventh Circuit routinely do not read pro se briefs, but allow staff attorneys to make `summaries’ for them instead.” The plaintiffs base this assertion on the testimony of both former Chief Judges Joseph Hatchett and Gerald Tjoflat at a March 28, 1998 public hearing of the Commission on Structural Alternatives for the Federal Courts of Appeals in Atlanta, Georgia.”

[Extract from Commission transcript; “I didn’t come here prepared, although I am, to discuss the 11th Circuit as if we were appearing before the Commission for some relief for the 11th Circuit, and we are not concerned that much about the rest of the country.” – Judge Tjoflat, 11th Cir., March 23, 1998].

In Judge Tjoflat’s own words:

“You just unpublish them (opinions)…you just do a little gloss over here, and you do a little gloss over there…”

See; meeting transcript; https://2dobermans.com/woof/1i

“Plaintiffs’ complaint appears to allege that the failure of the defendant judges to read pro se pleadings violates their right to equal protection, denies them access to the courts, and amounts to obstruction of justice. In addition, the complaint appears to allege that this practice constitutes a fraud on the court and permitted Leta to present false testimony in the prosecution of Pealock and Bolin, thus perpetuating the fraud on the court. Finally, the complaint alleges that the defendant judges, court personnel, and U.S. Attorneys comprise an enterprise which persists in a pattern of racketeering activity to obstruct justice.”

FEDERAL LAW REQUIRES THE AUTOMATIC DISQUALIFICATION OF JUDGE MARRA IN THIS CASE

In 1994, the U.S. Supreme Court held that “Disqualification is required if an objective observer would entertain reasonable questions about the judge’s impartiality. If a judge’s attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified. ” [Emphasis added]. Liteky v. U.S., 114 S.Ct. 1147, 1162 (1994).

Courts have repeatedly held that positive proof of the partiality of a judge is not a requirement, only the appearance of partiality.

                   Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) (what matters is not the reality of bias or prejudice but its appearance); United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985) (Section 455(a) “is directed against the appearance of partiality, whether or not the judge is actually biased.”) (“Section 455(a) of the Judicial Code, 28 U.S.C. §455(a), is not intended to protect litigants from actual bias in their judge but rather to promote public confidence in the impartiality of the judicial process.”).

That Court also stated that Section 455(a) “requires a judge to recuse himself in any proceeding in which her impartiality might reasonably be questioned.” Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).

In Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972), the Court stated that “It is important that the litigant not only actually receive justice, but that he believes that he has received justice.”  Ballantyne v. United States, 237 F.2d 657, 669 (5th Cir. 1956) (“What the Supreme Court said in Murchison, supra, 349 U.S. at pages 136-137, 75 S. Ct. at page 625, about the necessity of avoiding even the probability of bias applies here as does its quotation (ib.) from Offutt that “justice must satisfy the appearance of justice.” [ 348 U.S. 11, 75 S. Ct. 13.] ”) United States v. Cessa, 872 F.3d 267, 274 (5th Cir. 2017)(“The appearance of fairness is critical to a working justice system. “Justice must not only be done; it must be seen to be done.”) The Supreme Court has ruled and has reaffirmed the principle that “justice must satisfy the appearance of justice”, Levine v. United States, 362 U.S. 610, 80 S.Ct. 1038 (1960), citing Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11, 13 (1954). “Recusal under Section 455 is self-executing; a party need not file affidavits in support of recusal and the judge is obligated to recuse herself sua sponte under the stated circumstances. “ Taylor v. O’Grady, 888 F.2d 1189 (7th Cir. 1989).

The judge has a legal duty to disqualify himself even if there is no motion asking for his disqualification. The Seventh Circuit Court of Appeals further stated that “We think that this language [455(a)] imposes a duty on the judge to act sua sponte, even if no motion or affidavit is filed.” Balistrieri, at 1202.

Judges do not have discretion not  to disqualify themselves.

By law, they are bound to follow the law. Should a judge not disqualify himself as required by law, the judge has given another example of his “appearance of partiality” which, possibly, further disqualifies the judge. As stated by Justice Sotomayor above, should a judge not disqualify himself, then the judge is in violation of the Due Process Clause of the U.S. Constitution. Expanding on Justice Sotomayor’s words of concern, a judge is not immune for actions, though judicial in nature, taken in the complete absence of all jurisdiction.

See; Scheffler v. Trachy, No. 19-2179, at *7 (8th Cir. July 20, 2020) “(“A judge will…be subject to liability only when he has acted in the clear absence of all jurisdiction. Stump v. Sparkman, 435 U.S. 349, 356-57 (1978) (cleaned up).”)

In their dissenting opinion; 435 U.S. at 362; Justice Stewart’s dissent, joined by Justices Marshall and Powell, concluded that what Judge Stump did “was beyond the pale of anything that could sensibly be called a judicial act.” Id. at 365. Indiana law, Justice Stewart wrote…what Judge Stump did “was in no way an act ‘normally performed by a judge.’ ” Id. at 367.”

Fast forward to 2021 and with the public interest seemingly a far greater a burden to corrupt judges, the case of  Cook County Circuit Court Judge James Shapiro (“Shapiro”), who suspended Rebecca Firlit’s visitation rights to see her child on his own until she was vaccinated in an August 11, 2021 court order, mirrors the Stump case above. However, that is where the similarity ends. After public outrage, Shapiro would reverse that part of his order on August 30, 2021 and also recuse himself.

See also; United States v. Sciuto, 521 F.2d 842, 845 (7th Cir. 1996) (“The right to a tribunal free from bias or prejudice is based, not on section 144, but on the Due Process Clause.”).

It confirms; “disqualification is required” and that a judge “must be disqualified” under certain circumstances.

See; Lewis v. Lumpkin, No. 19-10303, at *2 (5th Cir. Apr. 21, 2021) (“The Supreme Court has recognized that recusal may be constitutionally required even when a judge has no actual bias. Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 825 (1986). “Recusal is required when, objectively speaking, ‘the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.'” Rippo v. Baker, 137 S. Ct. 905, 907 (2017) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)).

The Burkes side with former Eleventh Circuit Judge Hatchett in this dissent (deceased, Apr. 30, 2021).

See Dykes v. Hosemann, 776 F.2d 942, 953-54 (11th Cir. 1985);

“HATCHETT, Circuit Judge, dissenting:  On the difficult issue presented in this case, the scope of judicial immunity in a suit for damages under 42 U.S.C. § 1983, the law in the Eleventh Circuit is now made clear. The en banc court holds that judicial immunity is complete, unqualified, and without exception.

According to the majority, judicial immunity even protects a judge who acts without subject matter jurisdiction, without personal jurisdiction, and who unlawfully conspires with a party to violate another party’s federal constitutional rights.

As the majority concedes, no precedent, Supreme Court or otherwise, requires such a broad definition and application of the judicial immunity doctrine. Contrary to the majority’s view, no policy considerations justify such a result.”

It should be restated that the Burkes have read countless court opinions in this circuit and nationwide. The misinterpretation of the actual rules and statutes as described above is disturbing. The Burkes would urge this court not to repeat these life-altering mistakes in this case. As this court is now fully cognizant of the facts of the Burkes legal situation, this court can correct a manifest injustice and they civilly ask that the court obliges.

THE BIG QUESTION

CAN THE COURT OF APPEALS FOR THE ELEVENTH CIRCUIT PUT ASIDE ANY PREJUDICES  INCLUDING THE INCORRECT DISMISSAL OF THE JUDICIAL COMPLAINT AGAINST JUDGE KENNETH A. MARRA?

As stated in B. (timeline) above, on January 27, 2021 Chief Judge William Pryor dismissed the complaint for incorrect reasoning(s) and it was affirmed by the Judicial Council’s denial of the Burkes Petition for Review on May 7, 2021.  This is clear error, if you follow the rules.

See Breyer Report;

A-6: FAILURE TO INQUIRE ABOUT CLAIMS OF A JUDGE’S BIAS TOWARD A LITIGANT

Facts and complaint—A litigant filed a complaint against the judge who presided over his long-closed criminal case. He had sought the return of government-seized property and alleged that his attorney told him that the judge, angry because the sentence he imposed on complainant had been partially reversed, said he would bar the complainant from a status conference on the motion for return of the property, didn’t like complainant, would not see him, and would have given him more prison time if he could. As for complainant’s unreturned property, the judge allegedly said, “Tough.” Complainant contended that the judge had injected personal animus into the case.

Chief judge order—The chief judge dismissed the complaint, in part on the proper ground that its objections to the judge’s rulings were merits-related.

But the chief judge went on to state,

 “To the extent that Complainant alleges improper animus, the allegations are totally conclusory, contain no suggestion of corroboration in the record, and do not appear to have any basis in fact. Hence, the complaint is legally frivolous ”

ASSESSMENT—THE DISMISSAL IS INCONSISTENT WITH OUR STANDARD 4: The allegations are not “totally conclusory”; they point to specific comments allegedly made by the judge to the attorney, who allegedly would support the allegations. If the attorney contradicted the allegations, the chief judge’s limited inquiry could end there.

P.50, IMPLEMENTATION OF THE JUDICIAL CONDUCT AND DISABILITY ACT OF 1980,  A REPORT TO THE CHIEF JUSTICE, CHAIRED BY US SUPREME COURT JUSTICE STEPHEN BREYER (2006) (See; https://2dobermans.com/woof/4d )

Note: there are more examples in the report which support the Burkes arguments.

CONCLUSION

The Burkes have presented an assortment of options for the panel to choose from and which would allow this court to correct Marra’s manifest injustices, void the lower court judgments denying the Burkes Renewed Motion to Intervene (MIT Doc. 787) with Memorandum in Support (MIS Doc. 786) and, if necessary, reassign the case to an impartial judge.

The options detailed herein all lead back to the same conclusion, namely, the lack of jurisdiction argument by Marra is disingenuous and fails in law. For example, the lower court had jurisdiction to decide the motions as it could have treated the Burkes motion as a separate action which would not disturb the ongoing case and related appeal by the anti-consumer watchdog, the CFPB.

This court indisputably has jurisdiction and inherent powers (See; MIS Doc. 786, p.37-38, citing Chambers and Hazel-Atlas re inherent powers) to assume jurisdiction in this case, ranging from the void judgments issued as a result of fraud on [by] the court, the “anomalous rule” and the fact the Burkes raised serious constitutional questions which, if ignored on appeal, would amount to ‘treason to the constitution’.

Finally, Marra’s own behavior is unacceptable as he became a witness to his own proceedings. His subsequent orders were tainted with fraud and bias against the Burkes as discussed and the fact remains, his decision not to [self] recuse was err, he was automatically disqualified based on the rules and federal law.

For the foregoing reasons, the judgment of the district court should be reversed and Judge Kenneth A. Marra disqualified.

September 3, 2021                     Respectfully submitted,