Burke v. Ocwen et al
S.D. Tex., 9 Aug., 2021 (4:21-cv-2591)
The Void Judgment Case has been assigned to US District Judge Al Bennett
OCT 7, 2022
DEFENDANTS’ JOINT RESPONSE TO PLAINTIFF’S RULE 59(E) MOTION TO ALTER JUDGMENT
Defendants PHH Mortgage Corporation, Successor by Merger to Ocwen Loan Servicing, LLC (“PHH” or “Ocwen”), Mark Daniel Hopkins, Shelley Hopkins, and Hopkins Law, PLLC (all Hopkins defendants referred to as “Attorney Defendants”) jointly file this Response to Plaintiff Joanna Burke’s Rule 59(e) Motion to Alter Judgment [Doc. 54] and “Motion to Vacate Unconstitutional Order [Doc. 53], and would respectfully show unto the Court as follows:
I. INTRODUCTION
1. PHH and the Attorney Defendants each filed a Rule 12(c) Motion to Dismiss the Burkes’ lawsuit against them. [Doc. 18 and Doc. 19].
The Burkes filed a consolidated response. [Doc. 32].
PHH and the Attorney Defendants each filed a Reply. [Doc. 34 and Doc. 35].
The Court considered the motions, response and replies and found the motions to have merit.
As such, the Court granted PHH’s and the Attorney Defendants’ Rule 12(c) motions on August 29, 2022 and dismissed the Plaintiffs’ lawsuit. [Doc. 50].
2. Plaintiff Joanna Burke’s most recent motions, construed as Rule 59(e) motions [Doc. 53 and 54], take issue with the Court’s Final Judgment in that Plaintiff Burke alleges that her due process rights were violated because she does not believe she was properly ‘heard’ regarding her responsive filing.
Burke also contends that the Court committed a manifest error of law in concluding there were limits to the Burkes’ ability to attack final judgments by claiming various equitable rights. [Doc. 54, at p.17].
3. PHH and the Attorney Defendants assert that Burke’s recent post-judgment motions lack merit and should be in denied.
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II. ARGUMENT
4. A Rule 59(e) motion “calls into question the correctness of a judgment.”
In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir.2002); Fed. R. Civ. P. 59(e).
The Fifth Circuit has held that a Rule 59(e) motion is not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.
Simon v. United States, 891 F.2d 1154, 1159 (5th Cir.1990).
A Rule 59(e) motion “serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.”
Waltman v. Int’l Paper Co., 875 F.2d 468, 473 (5th Cir.1989) (internal quotations omitted).
For certain, the reconsideration of a judgment after its entry is an extraordinary remedy that should be used sparingly.
See, Templet, 367 F.3d at 479.
5. “A manifest error of law or fact must be one ‘that is plain and indisputable, and that amounts to a complete disregard of the controlling law or the credible evidence in the record.’”
Walker v. HongHua America, LLC, No. 4:12-CV- 00134,2012 WL 1898892 (S.D. Tex., May 23, 2012).
No manifest error of law or fact exists within the District Court’s grant of PHH’s and Attorney Defendants’ request for Rule 12(c) dismissal relief. Burke’s claims were not permissible as properly determined by the Court and detailed below.
6. As freely expressed by Burke (joined previously by her late husband), she brought this current lawsuit to be directed “at the judicial machinery itself” as an “equitable action with one purpose[:] to vacate void judgment(s) on the basis of fraud.”
See, Doc. 32, at 3, and Doc. 12 at 2.
Burke even admits that she has no real claim against PHH and the Attorney Defendants in this litigation, but the litigation ‘against the machinery’ must be directed at someone and who better than the benefactors of the previous judgments dismissing all of the Burkes’ various claims advanced over the years.
7. The genesis of this latest lawsuit arises out of the Burkes’ perceptions over actions taken by the Fifth Circuit during one of the Burkes’ prior appeals.
Specifically, the Burkes filed a Motion to Clarify with the Fifth Circuit. [Doc. 12, at 50].
After calling the clerk of the Fifth Circuit, the clerk edited the docket entry to relabel the filing as a motion for consideration. [Doc. 12, at 52].
Immediately aware of the alleged wrongdoing (the significance being immaterial to the actual merits of the appeal then pending), the Burkes filed a Motion to Correct with the Fifth Circuit.
See, Appellate Doc. #9621392-2.
The Fifth Circuit denied the Burkes’ Motion to Correct.
See, Doc. #515965956.
8. Upon review of Defendants’ Rule 12(c) motions challenging the validity of the Burkes’ lawsuit ‘against the machinery’, the Court correctly observed that there are only three ways to attack a judgment.
A litigant can bring a direct attack before the court that rendered the judgment.
Browing v. Navarro, 887 F.2d 553, 562 (5th Cir. 1989).
T he Court correctly noted that the offending order was issued by the Fifth Circuit and not the Court, so the Burkes did not utilize the approach of taking a direct attack.
The second approach a litigant could take is to file a collateral attack on a judgment, but Burke concedes her action was intended to be a collateral attack.
See, Browning, 8878 F.2d at 562; also see, In re Owsley, No. 2:20-CV-00171, 2021 WL 3033120 at *8 (S.D. Tex. July 17, 2021).
BURKE’S REPLY IN SUPPORT OF RULE 59(E) MOTION TO VACATE JUDGMENT
OCT 8, 2022
9. The last option is to attack a judgment through an independent action to enjoin enforcement of the judgment on equitable grounds.
Browning, 887 F.2d at 562.1
However, this avenue is not available to Burke as she contested the issue before the Fifth Circuit in the prior appeal.
Binding precedent on this Court provides,
“A party cannot relitigate ‘in the independent equitable action issues that were open to litigation in the former action where he had a fair opportunity to make his claim or defense in that action.’”
Siinesterra v. Roy, 347 Fed. Appx. 9 (5th Cir.2009); relying on, Bankers Mortgage Co. v. United States, 423 F.2d 73, 78-79 (5th Cir. 1970).
The court did not commit a manifest error of law in this regard but instead correctly dismissed the Burkes’ Complaint per the guidance of Sinesterra and Bankers Mortgage.
10. Burke also complaints that her due process rights were violated with the sudden dismissal of her Complaint.
[Doc. 53].
Burke seems to allege that she was entitled to ten days notice prior to the dismissal, and for support she cites the Court to an order from the Honorable Judge Rosenthal in an unrelated matter.
[Doc. 54-2, ex. B].
Judge Rosenthal’s notice was a “notice of intent to dismiss” provided to a litigant, informing the litigant of the court’s intention to sua sponte dismiss the action.
A court’s need to give notice of its intent to dismiss a matter sua sponte is vastly different to this case were the Court simply ruled on ripe motions before it.
1 Burke theorizes that a void judgment can be attacked at any time but she misses the important part about whether a judgment should be considered void.
There is a distinction between a void judgment and a voidable judgment.
A void judgment is one that was rendered by a court that lacked subject matter jurisdiction or jurisdiction over the parties.
See, Brumfiled v. Louisiana State Bd. of Education, 806 F.3d 289 (5th Cir. 2017)
(and Burke was afforded due process with as she filed a motion with the Fifth Circuit addressing the issue and she was heard on the same).
11. Defendants’ Rule 12(c) motions were filed on October 26, 2021
[Doc. 18 and Doc. 19].
The Burkes responded on November 16, 2021.
[Doc. 32].
Defendants filed their replies on November 23, 2021.
[Doc. 34 and Doc. 35].
The motions, response, and replies were on file and ripe for consideration for over eight months prior to the Court’s ruling on August 29, 2022.
[Doc. 50].
To the extent Burke asserts that due process requires an oral hearing, Burke is mistaken.
“Due process requires notice and an opportunity to be heard.”
De Long v. Hennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (quoting In re Powell, 851 F.2d 427, 431 (D.C.Cir.1988)).
But “an opportunity to be heard does not require an oral or evidentiary hearing on the issue … [because] the opportunity to brief the issue fully satisfies due process requirements.”
Molski v. Evergreen Dynasty Corp., 500 F.3d 1047, 1059 (9th Cir. 2007).
III. CONCLUSION
Pursuant the reasons set out herein, Defendants respectfully request that the Court deny Plaintiff’s Motions to Vacate and/or Alter the Judgment.
[Doc. 53 and Doc. 54].
Defendants further request that the Court grant Defendants any and all additional relief, whether at law or in equity, to which they may be justly entitled.
Respectfully Submitted,
HOPKINS LAW, PLLC
By: /s/ Mark D. Hopkins
Mark D. Hopkins,
Attorney in Charge
State Bar No. 00793975
SD ID No. 20322
Shelley L. Hopkins
State Bar No. 24036497
SD ID No. 926469
3 Lakeway Centre Ct., Suite 110
Austin, Texas 78734
(512) 600-4320
mark@hopkinslawtexas.com
shelley@hopkinslawtexas.com
ATTORNEYS FOR DEFENDANTS
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