BRIEF OF THE CONSUMERS, THE BURKES

No. 19-13015

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

CONSUMER FINANCIAL PROTECTION BUREAU,
Plaintiff – Appellee
 
v.

OCWEN FINANCIAL CORPORATION,
a Florida Corporation,
OCWEN MORTGAGE SERVICING, INC.,
a U. S. Virgin Islands corporation, and
OCWEN LOAN SERVICING, LLC,
a Delaware limited liability company.
Defendants – Appellee

v.

JOANNA BURKE, JOHN BURKE,
Intervenor Plaintiffs – Appellants.

On Appeal from the United States District Court For the Southern District of Florida;

District Court Docket No. 9:17-cv-80495-KAM

BRIEF OF APPELLANTS

 Pro Se Appellants

II.                             TABLE OF AUTHORITIES

III.                       INTRODUCTION

This is far more than just an appeal from a denial of intervention in a civil action between the [unconstitutional] CFPB1 and [admonished] non-bank Ocwen Financial Corporation2 (hereinafter referred to as “Ocwen Altisource”). It’s an altruistic* civil rights intervention.

*The original use of the concept of “altruism” is traced to Auguste Comte, a French mathematician and philosopher during the first half of the 1800s. The French word that was later translated to “altruism,” was an adjective that meant, “of or to others, what is another’s, somebody else.” When the word was translated into English, it was defined as:

“Devotion to the welfare of others, regard for others, as a principle of action: opposed to egoism or selfishness.”

A.                    The Courts Are Shaping the Future of American Home Ownership

Just as importantly, is recognizing the catastrophic economic shift which has been coined as a result of self-serving government decisions made post financial crisis3, which is leading to a new and disturbing “buy-to-rent” REIT frenzy4. The result: a dramatic decrease in affordable residential housing inventory for citizens to purchase.5 As if by a sordid twist of fate, homeowners who lost their homes are more than likely going to find their future landlords [if they can afford the burgeoning rents] are in fact those who purchased and securitized their foreclosed home under a home rental REIT scheme. That’s an awful proposition.

The question this raises: Is this what the judiciary envision for the American people and who are dependent on affordable housing?

B.                The Archives and Data Irrefutably Prove the Burkes Case

These are not conclusory assumptions, based on hearsay or relying upon “puffery”*, erie guesses or conspiracy theories.

*Judge Newsom wrote for the 3-panel a lengthy and recent opinion, wherein he believes that $3 BILLION dollars of settlements by Ocwen [which is an admission of their continual abuse of the consent orders and agreements made over the last decade with governmental agencies], can be ignored despite the fact they have clearly continued to lie and deceive investors about the overall financial health of Ocwen. Judge Newsom and the panel held that these ‘statements’ were attributable to mere “puffery”6. Carvelli v. Ocwen Fin. Corp., No. 18- 12250 (11th Cir. Aug. 15, 2019).

The Burkes respectfully disagree. Most consent orders come with the following disclaimer (extracted from the Maine Order [July 2019] per footnote 6): “Nothing in this Consent Agreement relieves Ocwen Financial of its obligations to comply with all State and federal law.” A constant refusal to comply with past and present consent orders nationwide should be firmly dealt with and that includes Ocwen’s’ financial and forward-thinking statements which seek to ensnare further investment monies to continue these unlawful acts against the homeowners, consumers and unwitting investors. This panel narrowed their answer to merely the statements and how it impacted investors. That was error when peoples’ homesteads are the underlying risk too.

No, rather this is an analytical review with supporting forensic data, scraped from court documents and records nationwide, which confirms the truth; for the last twelve years the government has been a culpable and willing partner in executing misery and wanton destruction of the people’s lives, their families, their children, and the elderly, by not following the Constitution, the rule of law and legal precedents to facilitate the unlawful takings of home-owners properties nationwide.

C.               Securitization is the ‘New Black’ for Wall Street and ‘The Black Widow’ for Citizens

Securitization of mortgage loans aka Residential Mortgage-Backed Securities

(“RMBS”) was the leading contributing factor to the Great Recession of 2008. The Banks were ultimately protected as ‘too big to fail’ and the citizens were the sacrificial cattle, herded to the slaughterhouses they brand as ‘courts of equity’.

Financial institutions, working on their next illegal cash windfall have now implemented a new scheme off the back of the RMBS-driven financial crisis which they walked away from, unscathed and unshackled. The new jewel in the crown is the securitization of rental income from stolen properties bought for cents on the dollar. Home ownership for the average person will become harder to achieve as they will be competing with Wall Street Bankers for the premium residential properties, who have far deeper pockets than your blue-collar worker. Heat maps from forensic reports and data sources7 visually display the alarming rise in REIT owned residential properties around the country. It confirms the facts, once the homeowner’s power is turned off by affiliated subsidiaries of Ocwen Altisource and then tossed into the streets and their property locks changed, these residential homes were acquired by companies like Amherst8 and Altisource [Residential]9. You read correctly – Ocwen Altisource – who’ve been busy rebranding and reinventing

themselves every day to satisfy their insatiable demand to acquire as much residential real estate as financially allowed in order to become a monopoly in the marketplace. With that control, comes power and with this unbridled power, even at the current levels, Ocwen Altisource has shown $3 billion reasons to date, why they are more than willing to break any law or regulation in order to achieve their personal financial goals – at the expense of the civil rights of American residents and citizens.

D.               Defendants: OCWEN FINANCIAL

Ocwen (Financial, ‘OMS’, ‘OLS’ and related brands) have been fined nearly $3 billion dollars10 since the financial crisis of 2008, now known as the Great Recession. Ocwen has continued to defy regulators, consent orders and consumer regulations nationwide. As recently as July 2019, Ocwen Altisource was issued a cease and desist order in the State of Maine for fraudulently attempting to foreclose on homeowners. It has become standard practice for government agencies to issue a cease and desist and then settle with nominal fines. That has been the case for Ocwen Altisource for at least eleven years, yet they are allowed to continue their criminal enterprise[s] without any executives being convicted for their crimes.

In 2017, the [self-admitted, unconstitutional] watchdog, the Consumer Financial Protection Bureau (“CFPB”) raised another similar slapstick legal challenge to Ocwen in Florida. Tired of watching the very expensive but ineffective watchdog plunder through another lawsuit, the Burkes [as soon as they were made aware of the lawsuit] intervened in order to ensure they and the homeowners/consumers would be rightfully represented and compensated for the decade plus abuses of Ocwen Altisource. This would, the Burkes thought, have been achieved as ‘joint plaintiffs’ in the case with the CFPB. That thought, however, would be reversed, based on CFPB’s deplorable alignment with Ocwen Altisource.

E.                A Criminal Enterprise Requires A Criminal Mastermind

It should be recognized, this court has recently issued a 46-page Opinion in Carvelli v. Ocwen Fin. Corp., No. 18-12250 (11th Cir. Aug. 15, 2019) which also outlines the background to Ocwen11. However, the Carvelli case discusses Ocwen prior to Erbey’s uprising. In other words, it does not have an update on how Ocwen and Altisource have reacted to the NYDFS requirement that founder William C. Erbey ‘resign’, which is with rage and rebellion.

It’s unquestionable, Erbey was furious, and once again, his footprints are all over the internet and court documents as he restructured and rebranded Ocwen and Altisource. Erbey achieved his goal.

This brief provides some clarity on the criminal mind of probably the best conman that was never incarcerated in recent history. His name is William C. Erbey and he’s recovered from his catastrophic loss of wealth after the NYDFS consent order was issued, with flying colors – as well as a premium $725,000 passport and citizenship status in Malta and a new residence and multi-million-dollar home in St. Croix. Ocwen bought his old place in Atlanta, GA for $2m over valuation as well, apparently a token of self-appreciation in the form of a real estate relocation package as he headed for the sun, with a plan to screw America for daring to take his wealth, and which the determined NY Commissioner nearly achieved.

Despite the years of continued defiance by William C. Erbey12, founder of Ocwen Altisource and ‘Chief Executive of Organized Racketeering’, where it’s evident negotiating pay-off fines are more financially rewarding to Ocwen Altisource than the government and consumers, the Ocwen corporation [and related

entities13] continues to grow its portfolio and maintains ever increasing business ties to financial services industry related entities, hedge funds, REITs and investors (e.g. billionaire Leon Cooperman, ex Goldman Sachs). Indeed, Ocwen Altisource related entity Home Loan Servicing Solutions, Ltd (“HLSS”), which was spun off in an attempt to move the MSR’s from Ocwen to HLSS, (after Erbey had to resign and part of his restructuring) shows Kerry Kennedy, no less, as a Director. Kennedy’s WEBSITE states;

“Led by human rights activist and lawyer Kerry Kennedy, Robert F. Kennedy Human Rights has advocated for a more just and peaceful world since 1968. We work alongside local activists to ensure lasting positive change in governments and corporations. Our team includes leading attorneys, advocates, entrepreneurs and writers united by a commitment to social justice. Whether in the United States or abroad, our programs have pursued strategic litigation on key human rights issues, educated millions of students in human rights advocacy and fostered a social good approach to business and investment.”

It must be said, that mission statement is paradoxical when HLSS is part of Ocwen and they are responsible for such human rights atrocities against tens of millions  of US residents  and citizens. Kennedy’s  website  is  a WHO’S WHO for fortune 100 executives and their family offices, private equity firms, investment

bankers, and lawyers, including Greenberg Traurig’s (“GTLaw”) own MARVIN S. ROSEN, a former Chairman of the Florida Housing Finance Agency. GTLaw are listed as counsel of record for Ocwen in this case.

Ocwen Altisource are eager to unlawfully displace as many citizens from their homes as possible for financial avarice. In the earlier years, where foreclosure was slow due to the volume of cases in courts, they introduced the OCWEN SAM,

wherein they wrote down payments and mortgage balances for homeowners with the caveat of a more-than-likely IRS tax bill and an agreement to share a quarter of the residential properties increase in valuation upon sale (in conjunction with government incentives to modify e.g. HAMP). Now, they’ve upgraded to a far more financially lucrative model.

Ocwen Altisource purchase and securitize these properties into the new trend of buy-to-rent REITs. Front Yard Residential, formerly known as Altisource Residential (RESI) is one such REIT. William Erbey’s name is, of course, behind all these alter-egos and subsidiaries.

1.                 ALTISOURCE PORTFOLIO SOLUTIONS (ASPS)

Altisource is a Luxembourg corporation. Altisource comprises certain business divisions divested from Ocwen, and it became registered with the Commission pursuant to Section 12(b) of the Exchange Act in 2009. It trades on the NASDAQ Global Market. The Executive Chairman of Ocwen, William Erbey, became Altisource’s Chairman at the time of its formation and owned approximately 26 percent of Altisource’s common stock between 2012 and 2014.

In 2009, Ocwen spun-off certain business lines to a newly created entity, Altisource, and entered into long-term agreements for Altisource to provide technology products and services to Ocwen including, among other things, home valuations, property preservation and inspection services, sales of foreclosed properties, mortgage charge-off collection services. Altisource Brands include[d]: ALTISOURCE      ASSET      MANAGEMENT      CORPORATION     (AAMC), ALTISOURCE ORIGINATION  SOLUTIONS (now  ‘TRELIX’), ALTISOURCE RESIDENTIAL (now FRONT YARD RESIDENTIAL), A REGISTERED ‘REIT’ (RESI) and HOME LOAN SERVICING SOLUTIONS, LTD14 (HLSS) – HLSS is a

Cayman Islands corporation with its principal executive offices in the Cayman Islands.

William Erbey simply moved the corporations overseas and relocated, leaving the flagship offices for Ocwen as a front-facing diversion, an entity which has become the classic Wall Street “boiler room” for the financial conglomerate to perform its shady and unlawful acts. Ocwen Altisource has taken a leaf from former director Wilbur Ross,  now COMMERCE SECRETARY  in  Trumps’ Cabinet, and

offshores the bulk of its CSR workforce, and apparently its executives. Despite earning their ill-gotten gains from the United States of America, Ocwen Altisource does absolutely everything to avoid paying US Taxes. Indeed, the offshore staff are so ‘cheap’ the savings pay for any watchdog or government ‘fine’. You have to give ‘kudos’ the way in which William C. Erbey is raising two fingers to the United States – who is not only accepting the insult, they are protecting his criminal enterprises. Ocwen Altisource’s website shows a list of nearly 25+ brands and of course, Ocwen Altisource flaunt their relationship and show they touch every possible conflict of interest in the businesses they own and operate. These are split into ‘services’ on the Ocwen Altisource website as follows;

• CASTLELINE® INSURANCE SERVICES
• CWCOT AUCTION SERVICES
• EQUATOR® DEFAULT SERVICING PLATFORM
• FIELD SERVICES
• FORECLOSURE AUCTION SERVICES
• FORECLOSURE TRUSTEE SERVICES
• GRANITE RISK MANAGEMENT™
• HUBZU® ONLINE REAL ESTATE MARKETING PLATFORM
• INVESTABILITY® REAL ESTATE INVESTOR MARKETPLACE
• LENDERS ONE® COOPERATIVE
• NCI® ACCOUNTS RECEIVABLE MANAGEMENT
• NOTEXCHANGE® MORTGAGE TRADING SOLUTION
• PREMIUM TITLE™ AND SETTLEMENT SERVICES
• PROCESSING SERVICES
• PROPERTY MANAGEMENT SERVICES
• QUALITY CONTROL SERVICES
•  REAL ESTATE MANAGEMENT SERVICES
• REALHOME SERVICES AND SOLUTIONS,
• REALHOME SERVICES AND SOLUTIONS,
• INSTITUTIONAL BROKERAGE SERVICES
• REALSYNERGY® COMMERCIAL SERVICING
• RENOVATION SERVICES
• RENTAL HOMES
• RENTRANGE® RENTAL DATA AND ANALYTICS
• SHORT SALE PROGRAM MANAGEMENT
• SPRINGHOUSE® VALUATIONS
• TRELIX™ MORTGAGE FULFILLMENT SERVICES
• UNDERWRITING SERVICES
• VENDORLY® INVOICE
• VENDORLY® THIRD-PARTY OVERSIGHT
• VENDORLY® TRANSACT

F.                PLAINTIFF: CONSUMER FINANCIAL PROTECTION BUREAU (“CFPB / BCFP”)

 The CFPB is the most independent of independent agencies, with power to make rules, enforce them, adjudicate violations in its own administrative hearings, and punish wrongdoers. And yet a single director heads the agency, one who can be removed only “for cause” — malfeasance rather than, say, a change in presidential policy priorities.

This concentration of power in the hands of a single, unelected, unaccountable official is unprecedented and cannot be squared with the Constitution’s structure, or with its purpose of protecting individual liberty from government overreach.

The Constitution created three co-equal branches keeping one another in check to promote liberty and prevent any single person or entity from growing too powerful. Then Congress created the new type of agency that is the CFPB. Without multiple leaders to appoint, there can be no staggered terms, no partisanship restriction, and no discussion among commissioners. Neither the executive nor the legislative branch can truly check the CFPB director, who again cannot be removed from office except for cause, and whose budget bypasses Congress.

The CFPB exercises significant executive power, in addition to elements of legislative and judicial functions, in its field of consumer-finance regulation. This creates serious constitutional problems for an agency that is unaccountable to the political branches — and, thus, to the people. The Constitution does not permit the unaccountable CFPB to exert such significant and varied power over an important aspect of American life.

Numerous lawsuits have called the CFPB into question. In 2016, Justice Brett Kavanaugh, when he was still a judge on the U.S. Court of Appeals for the D.C. Circuit, joined that attack. In PHH Corp. v. CFPB, he wrote that “other than the president, the director of the CFPB is the single most powerful official in the entire United States government, at least when measured in terms of unilateral power.” In his opinion in that case, Kavanaugh found the CFPB to be unconstitutional, before the D.C. Circuit reversed him en banc.15

The Burkes have written at length in their motions to stay about the Supreme Court cases and surrounding controversies regarding this anti-consumer agency. And how the justices added the Dodd-Frank Act as a second question – no doubt on the back of the All American Check Cashing petition (#19-432) [as they most likely did not wish to have to address All American snubbing the 5th Circuit and going direct to the US Supreme Court].

IV.                        STATEMENT OF JURISDICTION

This is an appeal of a final judgment from a district court exercising jurisdiction pursuant to 28 U.S.C. § 1332. This Court has appellate jurisdiction pursuant to 28 U.S.C. § 1291.

Expanding on this jurisdictional statement, the Burkes cite the following, which is pertinent to the appeal;

The “case” or “controversy” requirement, and thus the standing requirement, continues throughout the pendency of the case; therefore, federal courts must continue to insist on this requirement in order to maintain jurisdiction.

As the Eleventh Circuit stated, “It is not enough that a real controversy existed when the lawsuit was filed, the controversy must be a ‘live’ controversy throughout all stages of the case.” (Citing Burke v. Barnes, 479 U.S. 361, 362–64 (1987)).

In other words, at least one party in the case must always possess Article III standing for the federal court’s jurisdiction to continue.

The Eleventh Court in Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989) opined;

“We therefore hold that a party seeking to intervene need not demonstrate that he has standing in addition to meeting the requirements of Rule 24 as long as there exists a justiciable case16 and controversy between the parties already in the lawsuit.”

Despite this holding, the Chiles court did find the standing cases helpful to the intervention analysis in one aspect: “The focus . . . of a Rule 24 inquiry is whether the intervenor has a legally protectable interest in the litigation. It is in this context that the standing cases are relevant, for an intervenor’s interest must be a particularized interest17 rather than a general grievance.”

V.                           STATEMENT OF THE ISSUES

 “By coming into the suit, the intervenors did not deprive the plaintiffs of their right of action against the sheriff. He is still, so far as they are concerned, a necessary party to the suit. The intervenors may unite with him to resist the claim of the plaintiffs, but by their doing so the nature of the action is in no way changed.” –Thorn Wire Hedge Co. v. Fuller, 122 U.S. 535, 542 (1887)

A.               The lower court issued the following reasons for denial of intervention18:

1.                 Intervention of Right

 “Here, the Court concludes that the proposed Intervenors do not meet the requirements for intervention as of right because they have failed to establish that their interests, if any, would be impaired by the disposition of this action, particularly since the proposed Intervenors could raise or could have raised their concerns either in their individual foreclosure lawsuit or the recent litigation they

initiated in Texas federal court.19 Moreover, their interests, if any, would be adequately represented by CFPB,20 who seeks to hold Ocwen accountable for allegedly wrongfully foreclosing upon property based upon inadequate information.”21

2.                 Permissive Intervention

 “In the Motion to Intervene, the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention. Even if there were some overlap between CFPB’s case and the claims of the proposed Intervenors, the

present parties in this action would suffer prejudice22 and undue delay23 if the proposed Intervenors were permitted to intervene in this case. Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue, and the scope of discovery, which had already been underway  for  over  a  year24   when  the  Motion  to  Intervene  was  filed,  would

necessarily expand to include those new issues.25 Therefore, the Court in its discretion finds that permissive intervention is not warranted.”

VI.                        STATEMENT OF THE CASE

The facts below are a summary of the documents filed and responses made by all the parties in this case, namely the Burkes as Applicant-Intervenors (denied), the [self-confessed] unconstitutional CFPB and the serially-admonished Ocwen Financial Corporation and subsidiaries who have managed to rack up $3 BILLION dollars of fines per the Consent Orders around the country and since the Financial Crisis of 2008.

1.                 THE BURKES MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE [DOC. 220, Entered 4th Jan., 2019].

Hardly a “bare thread recital” the Burkes motion and memorandum spanned 69 pages of coherent and sensible reasoning why the Burkes should be allowed to intervene and why adding [Ocwen] Altisource as a party is essential. The filing also discussed the problems, presented ideas and potential solutions, referencing similar

‘Supreme Task Force’ style committees as a template for showing they are keen to invite change which could be embraced by all the parties and positively impact consumers. The Burkes intimated they would be willing to join in with CFPB as plaintiffs and felt a stratagem of writing a complete and detailed motion and memorandum in support, similar to as if they were making a new complaint themselves26, would provide the court all the necessary information, as well as comply with the legal minimum standard required, to ensure the motion was granted, either for Intervention as a right, or permissively. However, the lower court denied both and did not even consider the lesser standards of granting the applicants intervention on a restricted basis.27 Instead they were rudimentarily dismissed, and which the Burkes contend, is plainly erroneous.

As if that wasn’t bad enough, probably the most shocking of all the events in Florida is the fact the CFPB also sided with Ocwen and authored a joint templated objection to the Burkes motion to intervene – without a flicker of emotion or care for these elderly homeowners and consumers. People that this agency [bureau] claim to protect. Quite inexcusable.

2. OMINOUSLY, THE JOINT OPPOSITION TO BURKES INTERVENTION IS AUTHORED BY THE ‘CONSUMER BUREAU’ [DOC. 224].

a.                 ARGUMENT I – LET’S MAKE IT THREE STRIKES AGAINST THE INTERVENORS

 The objection opens with the fact that; “See DE 171. The Court also twice denied a different non-party’s motion to intervene to file evidence in the case. See DE 141, 218.”

BURKE RESPONSE: If you look at Doc. 68, which is the CFPB’s objection to a class of six pro se’s intervening in the case (DE 171), it’s a stock template of the ‘joint opposition’ to the Burkes intervention, bar a couple of sentences and to address the ‘class action’ response. The wording is verbatim. The cited cases are also the same. Let’s hope the hours billed to this case reflect the 15- minute preparation time expended in this well thought out joint opposition.

The six pro se’s intervention is completely different from the Burkes application to intervene. The same can be said for ‘DE 141’ wherein pro se Jovonov seeks leave to file into evidence documents as Amicus Curiae which is denied by the court in ‘DE 218’. These are inapposite references and irrelevant fodder to a stock template filing by the CFPB and as author for joint opposing parties.

b.                 ARGUMENT II – INTERVENTION AS A RIGHT SHOULD BE DENIED

 (1)              The motion to intervene is not timely.

 “From their papers, it appears as though the proposed intervenors have been in litigation relating to their property since April 2011. And this case was filed almost a year and nine months ago. Yet the proposed intervenors did not seek to join this lawsuit until now, more than 20 months after the Complaint was filed and more than 15 months after the pretrial deadline for amending claims and adding parties. The current parties would suffer prejudice should intervention be allowed now.”

BURKE RESPONSE: See Doc. 237; Exhibit A.

(2)              The proposed intervenors have no interest in this action.

 “The proposed intervenors have not met their burden to show that they have a direct, substantial, legally protectable interest” in the subject of the lawsuit. While the proposed intervenors recite their ongoing civil actions, those actions appear to have begun as early as 2011, and largely involve allegations related only to their own property. It is unclear that the Burkes’ interests would be impaired, particularly where they are seeking to protect their interest in already pending litigation. Because the proposed intervenors have failed to provide any explanation for how this case could possibly affect their rights, the Court should deny their request for intervention as of right.”

BURKE RESPONSE: See Doc. 237; Exhibit A and Exhibit D; citing only in part (please read full exhibit); “The Applicants and the homeowners claims are the core of the Bureaus action. To deny the Applicants “relevance” to this action does the Bureau no favor. Without the Applicants and homeowners, the Bureau would have no case. The Bureau’s argument is farcical and absurd.” (These exhibits detail the Burkes responses to the above.)

(3)              To the extent they have an interest in this case, the Bureau adequately represents the proposed intervenors.

“Proposed intervenors must show that that they would be represented inadequately by the existing parties to the suit they seek to join. Typically, representation is considered adequate “if no collusion is shown between the representative and an opposing party…”

BURKE RESPONSE: See Doc. 237; Exhibit B; “THE APPLICANTS POSSESS INCONTESTABLE INTEREST IN THIS ACTION”.

“And courts routinely deny motions to intervene by plaintiffs in actions brought by governmental agencies that represent the proposed plaintiffs’ general objectives.” “Because the CFPA does not permit private rights of action, the proposed intervenors have no separate interest in asserting their claims here.”

BURKE RESPONSE: See Doc. 237; Exhibit C; “The CFPA Question: Can the Bureau Rely on CFPA to Prevent Individuals from Intervening?” [p. 33]

c.                  ARGUMENT III – PERMISSIVE INTERVENTION SHOULD BE DENIED

 “Here, too, the proposed intervenors fall short. They do not list any specific potential claims that they would like to assert on behalf of themselves or other homeowners they purport to represent. And they further include discussions of various other issues relating to MERS and the Texas State Consumer Task Force that are largely unrelated—in terms of facts, timing, and defendants – to the allegations here. Where there is a lack of common issues of law or fact, permissive intervention is not warranted, particularly where, as here, granting the motion would prejudice the parties.”

BURKE RESPONSE: Apparently the CFPB [and Ocwen Altisource] could not see all the ‘potential claims’ that were in the 69-page motion to intervene and memorandum. See Doc. 237; Exhibit D; “FULL RIGHTS OR AT MINIMUM PERMISSIVE INTERVENTION SHOULD BE GRANTED”

3.                 LETTER TO THE COURT QUESTIONING SEVERAL MONTHS DELAY IN ORDER RE MOTION TO INTERVENE [DOC. 359, MAY 14, 2019]

This letter was submitted by the Burkes, asking the court for an update and discussing the Flynt case [intervention granted] and for access to sealed documents. This was also discussed in the motion for reconsideration, citing in part;

“The Applicants also wish to add that if Intervention of Right and Permissive Intervention based on (a) and (b) above is denied, in the Burkes’ reminder letter to this Court, they requested Intervention for the reduced purpose of access to sealed files and documents which will aid them with the current case, on appeal at the Court of Appeals for the Fifth Circuit, (see Doc. 359) citing the Larry Flynt intervention to unseal documents, which was granted on appeal to the US Court of Appeals for the 8th Cir., Case No. 14-1187 (2015).

In the alternative, quoting from Florida case law, let’s turn to In Re: Checking Account Overdraft Litigation (1:09-md-02036) District Court, S.D. Florida. In that case, a reporter by the name of Horwitz, submitted an Application to Intervene, Doc. 2083 and the Intervention Application was subsequently granted (Doc. 2212). Doc. 2083 contains many reasons why the Burkes’ should be granted Intervention to access documents, cites the First Amendment (as it is a public right and a case which affected millions of bank customers) and many relevant cases (e.g. Pansy v. Borough of Stroudsburg, 23F.3d, discussing the ‘question of law or fact’ when a non-party). He comments on his work writing as a freelance journalist for American Banker in this case and intervention on his website.

In summary, if a non-party, who is a news reporter28, and who did not have any direct grievance or complaint against the parties can obtain permissive intervention, then there is no just reason why the Burkes’ – who do have a direct interest – should not have the same access to records in this case.

This request was not answered in this Courts’ response and denial of the Application by the Burkes’. The Applicants respectfully request this is considered and decided upon, as necessary, in this Reconsideration Motion.”

4.                 ORDER DENYING MOTION TO INTERVENE [DOC. 411, DATED MAY 30, 2019]

See “V. Statement of the Issues” and Extracts.

5.                 MOTION FOR RECONSIDERATION [DOC. 408, DATED JUNE 14, 2019]

 This motion, included new arguments, or arguments that were not addressed in the denial, such as ;

“The reason for allowing intervention of right in this case [included]; to ensure if Ocwen’s motion to dismiss on the Constitutionality question was granted (which is pending before this Court), it could allow the Applicants to become the lead Plaintiffs’ in the case, and;

The Applicants wish to obtain facts and access documents which would help their current and ongoing Appellate case in Texas.

The CFPB have repelled the very homeowners they claim to protect in brazen filings before this Court [and notably after the Burkes filed Doc. 220, indicating they were looking forward to helping the CFPB as plaintiff-intervenors]. It cannot now be claimed they would adequately represent homeowners, including the Applicants, when they treat homeowners as adversaries. [a new consideration].”

6.                 ORDER DENYING MOTION FOR RECONSIDERATION [DOC. 411, DATED JULY 3, 2019]

 Judge Marra’s order did not address the ‘new issues’ the Burkes raised as shown above.

Furthermore, it appears that Judge Marra was in-between a rock and a hard place, as he had also denied unsealing of documents to a journalist earlier in the case.

In fact, Altisource’s counsel, a ‘non-party’ appeared toute de suite to stave off the emailed request for access citing privilege to and referencing the terms of a government agency consent order…(Of course, a usual point of reference for any upstanding business). Here’s the key part of the Order;

II. Discussion

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).

Federal Rule of Civil Procedure 24(b)(3) provides that “[i]n exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

In doing so, the Court relied on the length of time discovery had been underway when the Motion to Intervene (ECF No. 220) was filed, not the length of time between the commencement of discovery and the Court’s ruling on the motion to intervene. (See ECF No. 375 at 5).

The Intervenors have failed to establish any of the grounds that would justify a reconsideration, such as identifying a change in controlling law, new evidence, or clear error. See Krstic, 706 F. Supp. 2d at 1281– 82.

Accordingly, it is ORDERED AND ADJUDGED that the pro se putative Intervenors Motion for Reconsideration and Appeal Order Denying Intervention (ECF No. 408) is DENIED.

VII.                    STANDARD OF REVIEW

“We review the denial of a motion to intervene as of right de novo. Purcell v. Bank Atlantic Fin. Corp.,85 F.3D 1508, 1512 (11th Cir., 1996). Subsidiary factual findings are subject to review for clear error. Meek v. Metro. Dade County,985 F.2D 1471, 1477 (11th Cir., 1993). Orders denying permissive intervention are subject to review for abuse of discretion.” –Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242, 1248 (11th Cir., 2002).

VIII.                 SUMMARY OF THE ARGUMENT

 The fact an appeal by the [denied] intervenor-applicants is required is incongruous. Common sense applied, the Burkes meet the criteria for intervention as a right and/or permissively. It is absurd to think otherwise. In other words, COMMON SENSE REALISM should be applied to this appeal. This formed the basis of the Founding Fathers Constitution, which was derived from a Scotsman named Thomas Reid;

“If there are certain principles, as I think there are, which the constitution of our nature leads us to believe, and which we are under a necessity to take for granted in the common concerns of life, without being able to give a reason for them — these are what we call the principles of common sense; and what is manifestly contrary to them, is what we call absurd.”

IX.                        ARGUMENT

 The CFPB is a consumer watchdog without a bite29, who raised a civil action against serially admonished Ocwen Altisource for its continual failure to adhere to the rules and regulations and standards expected for a ‘repo’ business.

[Doc. 220] The Burkes intervened and did so with a detailed and comprehensive 69 page ‘Motion to Intervene’ (“MTI”) and ‘Memorandum in Support of Motion to Intervene’. (“MSMTI”). It meets the standards for both Intervention as a Right and/or Permissive Intervention. This has been detailed in this brief.

[Doc. 224] The ‘Joint Opposition’ was a CFPB-authored, template driven answer that only shows contempt for its own consumers and a lack of respectability in filing such a derisive and dismissive response to pro se litigants. Colluding with OCWEN against consumers you are supposed to protect is quite frankly – inexcusable. This has been detailed in this brief.

[Doc. 237] The Burkes responded to the templated ‘Joint Opposition and this has been detailed in this brief.

The Burkes also found it necessary to remind the court about ‘timeliness’ in considering and ruling on the Burkes motions. It took the court approximately 6 months to issue its first order of denial, yet the arguments presented to prevent the Burkes intervention would cause delay and was untimely. A contradiction.

The Burkes followed the denial with a timely motion for reconsideration, detailing many new reasons why Intervention was correct and arguing that the initial Order denying intervention was in error. The lower court, without mentioning the Burkes by name, [swiftly] dismissed their motion for reconsideration and incorrectly ruled there was no new arguments put forward by the Burkes. That is clearly wrong and has been fully briefed herein.

A.               Intervention of Right

(a) Contrary to the lower courts’ vague assessment, the Applicants have clearly established their interests and that their rights would be required.

(i) It was highlighted during the Burkes filings that the first and underlying case by Deutsche Bank against the Burkes – a company which has recently reneged on a Court mandated settlement of $7.2 billion US Dollars, $4.1 billion of which was ‘set aside’ for homeowners.

(ii) The Applicants also responded, confirming the Burke v Ocwen Loan Servicing LLC (Case 4:18-cv-04544) civil action is a new case being litigated in the SDTX Court and now on appeal to the Court of Appeals for the Fifth Circuit (USCA No. 19-20267). This does include a party to these proceedings.

The reason for allowing intervention of right in this case [included]; to ensure if Ocwens’ motion to dismiss on the Constitutionality question was granted (which was pending before the lower court at the time), it could allow the Burkes to become the lead Plaintiffs’ in the case, and; The Applicants wish to obtain facts and access documents which would help their current and ongoing Appellate case in Texas.

The Burke v Ocwen case has two possible outcomes;

(i) The Burkes’ prevail against Ocwen, in which case the findings can only help Plaintiffs’ and Intervenor(s) in this civil action obtain more relief for homeowners in any judgment or settlement, or;

(ii) The Burkes’ do not prevail against Ocwen, in which case the Burkes’ can seek restitution in this case and may find new evidence to help with any potential motions and/or appeal(s).

In either (1) or (2) Intervention will allow Applicants access to sealed documents and discovery in the case which will be helpful to the ongoing case in Texas against Ocwen. (Discussed further below in permissive intervention, e.g. Horwitz In Re: Checking Account Overdraft Litigation (1:09-md-02036) District Court, S.D. Florida).

(b) The CFPB have repelled the very homeowners they claim to protect in brazen filings before this Court and which took the Burkes completely by surprise. It cannot now be claimed they would adequately represent homeowners, including the Applicants, when they treat homeowners as adversaries. This was a new fact in the motion for

The CFPB has failed homeowners continually since the 2008 Financial Crisis. More egregiously, they have allowed Ocwen Altisource, related subsidiaries and alter egos, including their key directors (who switch positions between Ocwen and Altisource when necessary) to continue to trade, and in fact, allowing them to substantially increase the stake in the marketplace with many acquisitions in the intervening period between 2008-2019.

All this, despite the well documented history of non-compliance and defiance to Court orders which Ocwen continues to this very day. For example, Erbey’s non- compliance by continuing his executive role and interfering with Ocwens’ business[es], when he was ‘officially’ removed from the board as part of past settlement agreements.

The CFPB has failed to regulate. They have neglected homeowners throughout the country, as admitted in the original complaint wherein they detail the 580,000 plus ‘customers’ of Ocwen being abused yet they take no accountability for their own dilatory and weak attempts at enforcement. The question of the CFPB’s constitutionality still rages throughout the circuits to this day. It is clear, based on these undeniable facts, the Applicants should be granted intervention of right.

(c) The Burkes view this in lay-person terms as equivalent to that of a crossclaim/counterclaim, wherein the Burkes are seeking to be Plaintiff-Intervenors, over the objections of the CFPB (crossclaim), and a counterclaim against Ocwen. In plain words, it’s a “meat and potatoes” type of request and one which is typically allowed by Courts across the State and the Circuit[s] before a trial.

B.                Permissive Intervention

The Burkes question how they failed in this burden of proof.

(a) “Questions of fact are questions about what actually took place between the ” There should be no dispute that the Burkes’ have ongoing dealings with Ocwen and there should be no dispute that the Burkes’ wrote to the CFPB prior to this Application for Intervention, as documented in filings before this Court. The facts have been discussed in great depth. This part of the lower courts’ denial is empirically not supported by the record.

(b) The timeliness and prejudice objection are also without The Burkes’ submitted their application on Dec 27, 2018 to the lower court. The Burkes then had to send a reminder to the lower court on May 10, 2019 (Doc. 359). It has taken six months for this Court to reply to the original Application. The Burkes’ understand the lower court and docket is busy, however, it is certainly not the Burkes’ who have been tardy in filing, and who explained at length the reasons for filing on December 27, 2018, only a month or so after the entry of judgment of foreclosure in their own Texas case.

First, if you consider the case of Sharpe v. Americare Ambulance (8:13-cv- 01171). District Court, M.D. Florida, Order Doc. 69 (2017), this case involved an Intervenor Application submitted (Doc. 62) wherein the US wished to Intervene after over 4 years of being in litigation. It was granted, despite the fact the United States had refused to Intervene previously (Doc. 26). It may be said that this case is inapposite as there was no scheduling or discovery prior to settlement. That may be true, but 4 years and a refusal to intervene is hard not to notice when it is granted so willingly after a ‘change of heart’.

In the alternative, you can consider United States of America v. Halifax Hospital Medical Center (6:09-cv-01002) District Court, M.D. Florida which commenced in 2009 and if you look at Doc. 3 (June 2010), the United States also decides not to intervene and then again at Doc. 64, the United States has by now decided it does wish to intervene (opposed), some 2 years since the case started, and after Scheduling and discovery has been ongoing. The intervention is granted by the Court.

Secondly, in Florida Pediatric v. Secretary – AHCA (1:05-cv-23037-AJ) District Court, S.D. Florida, Doc. discusses “timeliness” in great detail. “This Circuit has recognized that “‘timeliness is not a word of exactitude or of precisely measurable dimensions. The requirement of timeliness must have accommodating flexibility toward both the court and the litigants if it is to be successfully employed to regulate intervention in the interest of justice.’” Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989) (quoting McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970). A review of this order further analyzes “timeliness” factors;

“In deciding whether a motion to intervene is timely, the court must consider the following factors: (1) the length of time during which the proposed intervenor knew or reasonably should have known of his interest in the case before moving to intervene, (2) the extent of prejudice to the existing parties as a result of the proposed intervenor’s failure to move for intervention as soon as he knew or reasonably should have known of his interest3, (3) the extent of prejudice to the proposed intervenor if the motion to intervene is denied, and (4) the existence of unusual circumstances militating either for or against a determination that the motion to intervene was timely. Id. at 264-66; Ga. v. U. S. Army Corps of Engineers, 302 F.3d 1242, 1259 (11th Cir. 2002).”

The Order continues;

“Likewise, the second factor also weighs in favor of the Intervening Plaintiffs. “[T]he relevant issue is not how much prejudice would result from allowing intervention, but rather how much prejudice would result from the would-be intervenor’s failure to request intervention as soon as he knew or should have known of his interest in the case.” Stallworth, 558 F.2d at 267.”

Here, the Burkes also easily pass all four tests as (1) the time was very short that the Intervenor-Applicants knew of their interest in the case; (2) the Burkes have not unreasonably delayed in bringing their Motion; (3) Also as noted in the Intervention of Right, the Burkes have discussed how they would be prejudiced if this Court does not allow intervention, based on the Burkes current Texas civil action against Ocwen. Furthermore, the Applicants view this in lay-person terms as equivalent to that of a cross-claim/counterclaim, wherein the Burkes are seeking to be Plaintiff-Intervenors over the [now evident] objections of the CFPB (cross-claim) and a counterclaim against Ocwen ; (4) The same answer applies here, as per the cited case.

In relation to ‘undue delay’ the Applicants have shown that the lower courts six-month delay in responding to the Burkes is out with their control and they submitted a timely Application to the Court for consideration. To punish the Burkes’ for the lower courts’ own administrative delay would be a denial of the “due process of law clause”30.

Furthermore, the Burkes interests are not to delay litigation, but to seek the right solution in favor of justice. The Burkes have not had the opportunity to review the entire record due, in part, to the sealed documents. However, it is not foreseen that any potential Intervenors requests and motions would materially delay the case more so than it has already endured, by the many requests by the Parties in this action, which has frustrated even the lower court and was documented in a paperless minute entry Doc. 381, dated May 31, 2019.31

(c) The Burkes also notified the lower court that if Intervention of Right and Permissive Intervention based on (a) and (b) above is denied, in the Burkes’

reminder letter to this Court, they requested Intervention for the reduced purpose of access to sealed files and documents which will aid them with the current case, on appeal at the Court of Appeals for the Fifth Circuit, (see Doc. 359) citing the Larry Flynt intervention to unseal documents, which was granted on appeal to the US Court of Appeals for the 8th Cir., Case No. 14-1187 (2015).32

In the alternative, quoting from Florida case law, let’s turn to In Re: Checking Account Overdraft Litigation (1:09-md-02036) District Court, S.D. Florida. In that case, a reporter by the name of Horwitz, submitted an Application to Intervene, Doc. 2083 and the Intervention Application was subsequently granted (Doc. 2212). Doc. 2083 contains many reasons why the Burkes’ should be granted Intervention to access documents, cites the First Amendment (as it is a public right and a case which affected millions of bank customers) and many relevant cases (e.g. Pansy v. Borough of Stroudsburg, 23F.3d, discussing the ‘question of law or fact’ when a non-party).33

He comments on his work writing as a freelance journalist for American Banker in this case and intervention on his website.

In summary, if a non-party, who is a news reporter, and who did not have any direct grievance or complaint against the parties can obtain permissive intervention, then there is no just reason why the Burkes’ – who do have a direct interest – should not have the same access to records in this case.

The only reason the Burkes contend that Judge Marra denied even mentioning the Horwitz intervention was that he had denied a journalist access to sealed records in this very case – and to protect an alleged non-party – Altisource, who call themselves a ‘third-party’ in court filings – and who were quizzically invited to the case directly by the lower court34, rather than as an intervenor.35 They objected to

the intervenors request to unseal documents.36 As stated, the Burkes contend that Altisource should be a party to the case as Ocwen and alter-ego37 Altisource are gaming the system as outlined in this brief. Ocwen Altisource have both share[d] the same directors and make no attempts to hide their direct relationships to this day.

William C. Erbey and Ocwen Altisource are certainly not fooling the Burkes. Apparently the same cannot be said for everyone else in the three [or four, if you call CFPB unconstitutional] branches of government.

X.                           CONCLUSION

“Thus, a person who can foresee that a lawsuit is likely to have a practical impact on his interests may pay a heavy price if he elects to sit on the sidelines instead of intervening and taking the risk that his legal rights will be impaired.” –Martin v. Wilks, 490 U.S. 755 (1989)

This Court should reverse and render the district court’s Final Judgment and grant the Burkes Intervention as a Right and/or other relief to which they are entitled.

DATED:  January 26, 2020           JOANNA BURKE

By      s/ Joanna Burke                                    

JOANNA BURKE JOHN BURKE

By      s/ John Burke                               

JOHN BURKE
46 Kingwood Greens Dr., Kingwood, TX, 77339
Telephone: (281) 812-9591

Pro Se for Plaintiffs-Appellants

?Intervenors appeal to CA11 after Judge Marra denies intervention as a right or permissively. Intervenors argue if permissively, they should be allowed access to SEALED docs. Judge Jill Pryor denies Motion to Disqualify. Two weeks later SEALS docs. ? @VolokhC #appellatetwitter pic.twitter.com/YycCyyIpDX

— LawsInTexas (@lawsintexasusa) March 7, 2020