foreclosure
Appellate Circuit

The Case of the Consumers versus the Consumer Watchdog and their BFF, OCWEN, on Appeal at the Eleventh Circuit

Burke v Ocwen and CFPB, that’s right, the consumer watchdog objects to the consumers.

LIT COMMENTARY

This page is dedicatd to the consumers, the Burkes’ intial brief appealing denial of intervention in a Florida case between the CFPB and Ocwen  who would shockingly join together to object to consumers/homeowners intervention at the Eleventh Circuit Court of Appeals.

This page will be updated frequently.

THE ‘DEATH WARRANT’ IS AN ‘ECONOMIC INTEREST’ IN THE CASE

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

 
Joanna Burke
46 Kingwood Greens Dr
Kingwood, Texas, 77339
Telephone: (281) 812-9591
Fax: (866) 805-0576
 
John Burke
46 Kingwood Greens Dr
Kingwood, Texas, 77339
Telephone: (281) 812-9591
Fax: (866) 805-0576

 Pro Se Appellants

II.                             TABLE OF AUTHORITIES

CERTIFICATE OF INTERESTED PERSONS (“CIP”) AND CORPORATE DISCLOSURE STATEMENT

 Pursuant to Eleventh Circuit Rule 26.1-1 and Federal Rule of Appellate Procedure 26.1, Appellants hereby furnish a complete list of the following persons who have an interest in the outcome of this case.

US District Judge;  Marra, Kenneth A.
US Magistrate Judge;  Matthewman, William

Consumer Financial Protection Bureau (“CFPB”);
Brenowitz, Stephanie C.
Baez, Tianna Elise Chin,
Shirley T. Cohen,
Adam Harris Demille-Wagman,
Lawrence Desai, Atur Ravi
Healey, Jean Marie Kelly,
Erin Mary Nodler,
Gregory Ryan Posner,
Michael Roberson,
Amanda Christine Savage,
James Joseph Singelmann,
Jan Edwards Wilson,
Jack Douglas

Office of the Attorney General & Office of Financial Regulation;
Fransen, Scott Ray
Granai, Sasha Funk Pinder,
Jennifer Hayes Winship, Blaine H.

Intervenor Plaintiff;
Burke, Joanna
Burke, John

Fauley, Robynne (TERMINATED)
Subramaniam, Denise (TERMINATED)

Ocwen Financial Corporation & Ocwen Loan Servicing, LLC & Ocwen Mortgage Servicing, Inc.;
Azuero, Catalina E.
Berry, Bridget Ann Craven,
Laura S. Hefferon,
Thomas M. Previn,
Matthew P. Protess,
Amanda B. Riffee,
Matthew L. Rose-Smith,
Sabrina M. Sheldon,
Matthew S. Smith,
Tierney E. Stoll,
Laura Tayman,
W. Kyle Wein,
Andrew Stuart

Law Firms;
Buckley, LLP (“Buckley”)
Greenberg Traurig (“GTLaw”)
Goodwin Proctor, LLP (“Goodwin”)

Dated; 26th January, 2020;

/s/ Joanna Burke

Joanna Burke, Pro Se

46 Kingwood Greens Dr, Kingwood, TX,77339
Telephone: (281) 812-9591
Facsimile: (866) 705-0576
Email: kajongwe@gmail.com

/s/ John Burke

John Burke, Pro Se
46 Kingwood Greens Dr, Kingwood, TX,77339
Telephone: (281) 812-9591
Facsimile:(866) 705-0576
Email: alsation123@gmail.com

STATEMENT REGARDING ORAL ARGUMENT

 This is an appeal from a trial court order denying the Burkes’ application to intervene, either directly or permissively [Doc. 375] and again on reconsideration [Doc. 411]. Plaintiffs-Appellants submit that oral argument is not necessary to grant intervention.

I.            TABLE OF CONTENTS

Page

CERTIFICATE OF INTERESTED PERSONS……………………………………………. i

STATEMENT REGARDING ORAL ARGUMENT……………………………………. v

  1. TABLE OF CONTENTS………………………………………………………………. vi
  2. TABLE OF AUTHORITIES……………………………………………………….. xiii

AMERICAN HOME OWNERSHIP……………………………………….. 2

  1. THE ARCHIVES AND DATA IRREFUTABLY

PROVE THE BURKES CASE………………………………………………. 3

  1. SECURITIZATION IS THE ‘NEW BLACK’ FOR WALL STREET AND ‘THE BLACK WIDOW’ FOR

CITIZENS…………………………………………………………………………. 4

  1. DEFENDANTS: OCWEN FINANCIAL…………………………………. 6
  2. A CRIMINAL ENTERPRISE REQUIRES A

CRIMINAL MASTERMIND………………………………………………… 7

  1. ALTISOURCE PORTFOLIO          SOLUTIONS (ASPS)        10

…………………………………………………………………………..13

PROTECTION BUREAU (“CFPB / BCFP”)………………………….. 14

  1. STATEMENT OF JURISDICTION……………………………………………….. 16
  2. STATEMENT OF THE ISSUES……………………………………………………. 18
    1. THE LOWER COURT ISSUED THE FOLLOWING

REASONS FOR DENIAL OF INTERVENTION:…………………… 18

  1. INTERVENTION OF RIGHT…………………………………….. 18
  2. PERMISSIVE INTERVENTION…………………………………. 19
  1. STATEMENT OF THE CASE………………………………………………………. 21
  2. THE BURKES MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT OF THE MOTION TO INTERVENE [DOC. 220,

ENTERED 4TH JAN., 2019]……………………………………….. 21

  1. BELOW IS THE TABLE OF CONTENTS FOR THE BURKES MOTION TO INTERVENE………………………………… 23

………………………………………………………………….28

  1. BELOW IS THE TABLE OF CONTENTS FOR THE BURKES MEMORANDUM…………………………………………….. 30
  2. OMINOUSLY, THE JOINT OPPOSITION TO BURKES INTERVENTION IS AUTHORED BY

THE ‘CONSUMER BUREAU’ [DOC. 224]………………….. 35

  1. ARGUMENT I – LET’S MAKE IT THREE STRIKES AGAINST THE INTERVENORS………………………… 35
  2. ARGUMENT II – INTERVENTION AS A RIGHT SHOULD BE DENIED…………………………………………………………. 36
  3. ARGUMENT III – PERMISSIVE INTERVENTION SHOULD BE DENIED…………………………………………………….. 38
  4. LETTER TO THE COURT QUESTIONING SEVERAL MONTHS DELAY IN ORDER RE MOTION TO INTERVENE [DOC. 359, MAY 14, 2019] ………………………………………………………………………… 39
  5. ORDER DENYING MOTION TO INTERVENE

[DOC. 411, DATED MAY 30, 2019]……………………………. 41

  1. MOTION FOR RECONSIDERATION [DOC.

408, DATED JUNE 14, 2019]…………………………………….. 41

  1. ORDER DENYING MOTION FOR RECONSIDERATION [DOC. 411, DATED

JULY 3, 2019]…………………………………………………………. 41

  1. ARGUMENT…………………………………………………………………………….. 44
  2. INTERVENTION OF RIGHT……………………………………………… 45
  3. PERMISSIVE INTERVENTION…………………………………………. 48
  4. CONCLUSION………………………………………………………………………….. 55

CERTIFICATE OF SERVICE……………………………………………………………….. 57

CERTIFICATE OF COMPLIANCE……………………………………………………….. 5

STATUTES & RULES
12 U.S.C. § 5381………………………………………………………………………………….. ii
12 U.S.C. § 5491………………………………………………………………………………….. ii
12 U.S.C. § 5565…………………………………………………………………………………. 27
12 U.S.C. §§ 5564……………………………………………………………………………….. 27
28 U.S.C. § 1291…………………………………………………………………………………. 16
28 U.S.C. § 1332…………………………………………………………………………………. 16
Fed. R. Civ. P. 24(a)…………………………………………………………………………….. 30
Fed. R. Civ. P. 24(b)…………………………………………………………………………….. 30

OTHER AUTHORITIES
96 COMPANIES (OCWEN)…………………………………………………………………… 9
ALL AMERICAN CHECK CASHING V. CONSUMER FINANCIAL PROTECTION BUREAU, US #19-432 (2019)…………………………………………………………… 16
ALLIED PROGRESS REPORT………………………………………………………………. 1
ALTISOURCE ASSET MANAGEMENT CORPORATION (AAMC)………….. 11
ALTISOURCE ORIGINATION SOLUTIONS…………………………………………. 11
ALTISOURCE PORTFOLIO SOLUTIONS (ASPS)………………………………….. 10
ALTISOURCE RESIDENTIAL…………………………………………………………….. 11
AMHERST…………………………………………………………………………………………. 5
COMMERCE SECRETARY (WILBUR ROSS, EX OCWEN)…………………….. 12
FCIC ARCHIVED REPORT…………………………………………………………………… 2
FORBES TOP 400………………………………………………………………………………… 8
FRONT YARD RESIDENTIAL……………………………………………………………… 5
HOME LOAN SERVICING SOLUTIONS, LTD………………………………………. 11
HOUSING WIRE (NEW RESIDENTIAL ARTICLE)………………………………… 11
JOINT CENTER FOR HOUSING STUDIES OF HARVARD UNIVERSITY 2019 REPORT…………………………………………………………………………………………. 5
KERRY KENNEDY RFK HUMAN RIGHTS WEBSITE…………………………….. 9
MAIN STREET RENEWAL…………………………………………………………………… 5
MARVIN S. ROSEN, GTLAW (RFK WEBSITE)…………………………………….. 10
NEW RESIDENTIAL INVESTMENT CORP…………………………………………… 11
OCWEN FINANCIAL…………………………………………………………………………… 6
OCWEN SAM……………………………………………………………………………………. 10
REIT………………………………………………………………………………………………….. 2
RFK WEBSITE, WHO’S WHO……………………………………………………………….. 9
STATE OF MAINE WEBSITE……………………………………………………………….. 3
STATE OF MAINE ORDER………………………………………………………………….. 3
TYLER R. STRADLING AND DOYLE S. BYERS, Intervening in the Case (or Controversy): Article III Standing, Rule 24 Intervention, and the Conflict in the Federal Courts, 2003 BYU L. Rev. 419 (2003)…………………………………………………. 18
VIOLATION TRACKER………………………………………………………………………. 6

CASES

Page(s)

Allstate Ins. Co. v. Regions Bank, CIVIL ACTION 14-0067-WS-C (S.D. Ala.
Aug. 19, 2014)………………………………………………………………………………… 20
Angel Flight of Georgia, Inc. v. Angel Flight America, Inc., 272 Fed. Appx. 817, 819 (11th Cir. 2008)……………………………………………………………………………………….. 22
Arizonans for Official English v. Arizona, 520 U.S. 43 (1997)……………………… 17
Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009)……………………………………………… 22
Baker v. Warner/Chappell Music, Inc., CASE NO. 14-22403-CIV-GOODMAN, at
*1 (S.D. Fla. 2017)…………………………………………………………………………… 21
Burke v Ocwen, 19-20267 (5th Cir. 2019)………………………………………………… 46
Burke v. Barnes, 479 U.S. 361, 362–64 (1987)………………………………………….. 17
Carvelli v. Ocwen Fin. Corp., No. 18-12250 (11th Cir. Aug. 15, 2019)…………. 3, 7
Chiles v. Thornburgh, 865 F.2d 1197 (11th Cir. 1989)…………………………… 17, 51
Consumer Financial Protection Bureau v. The National Collegiate Master Student Trust, et al. (No. 17-1323 (MN))……………………………………………………………………… 29
Cyclops Vapors 2, LLC v. U.S. Food & Drug Admin., CIVIL ACT. NO.
2:16cv556-MHT (WO), at *6 (M.D. Ala. Mar. 22, 2018)…………………………. 20
Doe v. United States, 749 F.3d 999, 1003 (11th Cir. 2014)…………………………… 55
Edwards v. Accredited Home Lenders, Inc., CIVIL ACTION NO. 07-0160-KD-C, at *3-4 (S.D. Ala., 2009)……………………………………………………………………………… 23
FDIC v. Van Dellen, No. CV 10-4915 DSF (Shx), 2012 WL 4815159 (C.D. Cal.
Oct. 5, 2012)…………………………………………………………………………………… 33
Florida Pediatric v. Secretary – AHCA (1:05-cv-23037-AJ) District Court, S.D. Fla (2009)…………………………………………………………………………………………………….. 50
Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015)……………………………………….. 53
Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015)…………………………………. 53
Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242, 1259 (11th Cir. 2002)
……………………………………………………………………………………………………..20, 43
Gramble v US 587 US       (2019)……………………………………………………………. vi
Hollingsworth v. Perry, 570 U.S. 693 (2013)…………………………………………….. 17
In re Checking Account Overdraft Litigation, 694 F. Supp. 2d 1302 (S.D. Fla.
2010)…………………………………………………………………………………………………..53
Kondapalli v. Fed. Deposit Ins. Corp., Case No. 8:15-cv-1370-T-30AEP, at *3 (M.D. Fla. Mar. 21, 2016)………………………………………………………………………………… 19
Krstic v. Princess Cruise Lines, Ltd., 706 F. Supp. 2d 1271 (S.D. Fla. 2010)…… 43
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)………………………………….. 17
Martin v. Wilks, 490 U.S. 755 (1989)………………………………………………………. 56
McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir. 1970)……………….. 51
Me. Stat. tit. 32 § 11013…………………………………………………………………………. 3
Meek v. Metro. Dade County,985 F.2d 1471, 1477 (11th Cir., 1993)……………… 43
Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011)
…………………………………………………………………………………………………………..55
Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994)………………………. 40
PHH Corp. v. CFPB , 881 F.3d 75 (D.C. Cir. 2018) (en banc)………………………. 15
Public Citizen v. Liggett Group, Inc., 858 F.2d 775 (1st Cir. 1988)……………….. 53
Purcell v. Bank Atlantic Fin. Corp.,85 F.3d 1508, 1512 (11th Cir., 1996)……….. 43
Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278 (11th Cir. 2017)…………………………………………………………………………………………………….. 20
Sharpe ex rel. United States v. AmeriCare Ambulance, Case No. 8:13-cv-1171-T- 33AEP (M.D. Fla. Jul. 13, 2017)……………………………………………………………………. 49
Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977)…………………………… 51
Thorn Wire Hedge Co. v. Fuller, 122 U.S. 535, 542 (1887)………………………….. 18
United States v. Halifax Hosp. Med. Ctr., Case No: 6:09-cv-1002-Orl-31TBS (M.D. Fla. Nov. 18, 2013)………………………………………………………………………………… 50
United States v. I.C.C, 337 U.S. 426, 430 (1949)……………………………………….. 17
Universal Elecs., Inc. v. Universal Remote Control, Inc., 943 F. Supp. 2d 1028 (C.D. Cal. 2013)…………………………………………………………………………………………….. 20

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.”

1 “Allied Progress released a new analysis finding that more than half of Kraninger’s appointments to the Consumer Advisory Board (CAB) have ties to the financial services industry. The House Financial Services Committee’s hearing on the CFPB’s Semi-Annual report is appropriately named, “Who Is Standing Up for Consumers?”. The answer is unclear as Director Kraninger has kept experienced consumer advocates in the minority on the CAB at the same time she is proposing to gut consumer protections from the payday and debt collection industries and refusing to defend the bureau’s constitutionality.” – See ALLIED PROGRESS Article.

2 Ocwen Financial Comprises; NMLS#: 1852 Ocwen Loan Servicing, LLC. NMLS#: 1089752 Ocwen Mortgage Servicing, Inc. NMLS#: 3313 Liberty Home Equity Solutions, Inc. NMLS#: 2726 PHH Mortgage Corporation and has 7,000+ jobs outsourced to Philippines and India under brand of Ocwen APAC. The alter-ego of Ocwen, Altisource and it’s 25+ subsidiary companies is discussed separately in this brief.

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.

3 “We conclude collapsing mortgage lending standards and the mortgage securitization pipeline lit and spread the flame of contagion and crisis.” –FCIC ARCHIVED REPORT

4 “It was like drinking from a fire hose, buying thousands of homes a week,” he says. “These were homes that were bought on the foreclosure channel, which means you had to be on the courthouse steps with cash, making bids and closing immediately.” -Colony Starwood Homes (NYSE: SFR) CEO Frederick C. Tuomi –See REIT article.

5 According to research from the Joint Center for Housing Studies of Harvard University, record demand growth spurred an influx of more than 8 million new units of rental housing stock in the United States in the decade between 2005 and 2015. Conversions of single-family houses from owner-occupied to rental accounted for roughly 80 percent of the increase, as the single-family share of the total rental stock climbed from 34 percent to 40 percent in the 10-year period. “This growth is notable not only because it is so substantial, but also because institutional investors have taken a much more active role in this market than in the past,” the Harvard researchers reported. “By creating large portfolios of homes across many markets, large-scale investors are testing the waters for a new model of owning and operating scattered-site properties that could expand the range of housing options available to renters.” -See REIT article.

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).

6 Meanwhile in July 2019, Ocwen was issued ANOTHER cease and desist consent order [showing lack of honesty and continuing to defy all consent agreements, it has to be said, the sheer dismissive posture and petulance by William Erbey and Ocwen Altisource is extremely noticeable] this time from the STATE OF MAINE; ORDER, in part;

“The Bureau finds that OLS had no authority to execute documents as an Attorney in Fact” for legal entities which have had no corporate existence since March 13, 2012 at the latest and that OLS’s uses of those documents constitute violations of 32 M.R.S. § 11013(2). In servicing Maine mortgages, Ocwen Financial shall immediately cease and desist from recording documents as “Attorney in Fact” for any Aegis entity. Ocwen Financial shall not represent that it possesses a power of attorney from any Aegis entity authorizing it to act on that entity’s behalf, when servicing Maine mortgages; when hiring Maine counsel; or when prosecuting or responding to foreclosure, quiet title, or declaratory judgment actions. In servicing Maine mortgages, Ocwen Financial shall immediately cease and desist from recording documents identifying MERS as the “mortgagee of record” with respect to Aegis-originated loans, unless the filing includes a valid assignment from the mortgage originator or subsequent mortgagee.”

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

7 “Renting is the new black; According to a Joint Center for Housing Studies of Harvard University report, approximately 43 million families and individuals lived in rental housing as of mid-2015, a surge of roughly 30 percent from 2005.” Moving forward to their 2019 REPORT, “The State of the Nation’s Housing”, it confirms the worst; ‘The shortfall in new homes is keeping the pressure on house prices and rents, eroding affordability—particularly for modest-income households in high-cost markets.’

8 AMHERST holds a big stake in this marketplace, with an alter-ego,subsidiary company trading as “MAIN STREET RENEWAL

9 Now rebranded as FRONT YARD RESIDENTIAL (a REIT) to hopefully make further smoke and mirrors and appear detached from Ocwen/Altisource (which has failed).

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.

10 See VIOLATION TRACKER (It’s in excess of $3 billion when you add Altisource and related entities).

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.

11 Ocwen is a Florida corporation with its principal place of business in West Palm Beach, Florida. Ocwen’s common stock is registered with the Commission pursuant to Section 12(b) of the Exchange Act and trades on the New York Stock Exchange. Between 2012 and 2014 , Ocwen’s Executive Chairman and founder, billionaire William Erbey, owned approximately 13 percent of Ocwen’s common stock. That changed drastically after the NYDFS Consent Order.

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

12 See #353 William Erbey NET WORTH $1.8 BILLION 2014 FORBES TOP 400

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

13 For example a history of corporations for the head office address in Florida for Ocwen reveals 96 COMPANIES [shows active and non-active history].

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

14 Website link to Settlement in S.D. Florida Case and which lists Ocwen Altisource related subsidiaries; Excluded from the Settlement Class are the Defendants; the affiliates and subsidiaries of HLSS, Ocwen, Altisource Portfolio Solutions, S.A., Altisource Residential Corporation, Altisource Asset Management Corporation, and New Residential Investment Corp.; members of the immediate family of each of the Individual Defendants; the officers and directors of HLSS, Ocwen, Altisource Portfolio Solutions, S.A., Altisource Residential Corporation, Altisource Asset Management Corporation, and NEW RESIDENTIAL INVESTMENT CORP. [read this HOUSINGWIRE article from 2017; Now, considering that New Residential owns nearly 5% of Ocwen as part of that big MSR deal along with this new agreement between New Residential and Altisource, the relationship between all those companies just got a little bit more complex.] during the Class Period; the heirs, successors, and assigns of any excluded person or entity; and any entity in which any excluded person has or had during the Class Period a controlling interest.

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;

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;

15 In his recent Order in this case, Judge Marra aligned himself with the D.C. Circuit ruling. He stated that the CPFB is Constitutional.

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.”

16 “Courts must look behind names that symbolize the parties to determine whether a justiciable case or controversy is presented.” United States v. I.C.C, 337 U.S. 426, 430 (1949).

17 Hollingsworth v. Perry, 570 U.S. 693 (2013); “To have standing, a litigant must seek relief for an injury that affects him in a “personal and individual way.” Defenders of Wildlife, supra, at 560, 1, 112 S. Ct. 2130, 119 L. Ed. 2d 351. He must possess a “direct stake in the outcome” of the case. Arizonans for Official English, supra, at 64, 117 S. Ct. 1055, 137 L. Ed. 2d 170 (internal quotation marks omitted).” Here, the Burkes meets both criteria; the legally protectable interest is -Tyler R. Stradling and Doyle S. Byers, Intervening in the Case (or Controversy): Article III Standing, Rule 24 Intervention, and the Conflict in the Federal Courts, 2003 BYU L. Rev. 419 (2003).

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

their home, which is under an order of foreclosure, undoubtedly an injury that affects [them] in a “personal and individual way, and which is alleged to be serviced by Ocwen.

18 Doc. 375

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

19 “And the relief Plaintiff seeks in this action and the Court’s determination of Plaintiff’s claims will have a direct impact on Iberia Bank’s legal claims against Plaintiff in the State Court Action and the enforceability of its security interests.” Kondapalli v. Fed. Deposit Ins. Corp., Case No. 8:15-cv-1370-T-30AEP, at *3 (M.D. Fla. Mar. 21, 2016)

20 Not if CFPB is deemed unconstitutional and the Dodd-Frank Act is stricken. See Selia Law petition (#19-7) at the US Supreme Court and Burkes prior motions to stay.

21 “Finally, the fourth requirement is established because Iberia Bank’s interest is not adequately represented at this time. Indeed, the FDIC disclaims any interest in the Subject Loan Documents. Accordingly, Iberia Bank should be permitted to intervene and participate as a co- Defendant in this action.” Kondapalli v. Fed. Deposit Ins. Corp., Case No. 8:15-cv-1370-T- 30AEP, at *3 (M.D. Fla. Mar. 21, 2016)

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

22 “Moreover, neither the plaintiffs nor the government defendants have demonstrated that they would be prejudiced by allowing the Public Health Intervenors to intervene and participate in this litigation at this juncture. See Salvors, Inc., 861 F.3D AT 1294 (“the original parties to the action have not claimed any prejudice stemming from [the] claimed delay”). – Cyclops Vapors 2, LLC v. U.S. Food & Drug Admin., CIVIL ACT. NO. 2:16cv556-MHT (WO), at *6 (M.D. Ala. Mar. 22, 2018)

“It   is   well   settled    that    “[m]ere    delay    in    the    litigation    does    not    establish  undue prejudice.” Universal Elecs., 943 F. SUPP. 2D AT 1033 (citations omitted)” Canvs Corp. v. FLIR Sys., Inc., Case No: 2:14-cv-180-FtM-38CM, at *6 (M.D. Fla. Dec. 5, 2014)

It is well-settled that “Allegations that an amendment will require the expenditure of some additional time, effort, or money do not constitute undue prejudice.” Allstate Ins. Co. v. Regions Bank, CIVIL ACTION 14-0067-WS-C (S.D. Ala. Aug. 19, 2014)

23 “The plaintiffs argue that the Public Health Intervenors’ motion to intervene is untimely because it was filed more than a year after the complaint was filed and more than six months after the plaintiffs’ motion for summary judgment was filed.” Cyclops Vapors 2, LLC v. U.S. Food & Drug Admin., CIVIL ACT. NO. 2:16cv556-MHT (WO), at *5 (M.D. Ala. Mar. 22, 2018) -Court allowing intervention over objections.

24 See Chiles,865 F.2D AT 1213. -Georgia v. U.S. Army Corps of Engineers, 302 F.3d 1242, 1259 (11th Cir. 2002) – Reversing lower court denial of intervention as untimely, and Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278 (11th Cir. 2017) – Finding intervention timely even though the contested order was entered 33 years earlier.

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

25 “The Court declines to close the door on the intervenors, but does limit their entry.” –Baker v. Warner/Chappell Music, Inc., CASE NO. 14-22403-CIV-GOODMAN, at *1 (S.D. Fla. 2017).

‘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.

26 Relying on ‘common sense’ and the legal standard set forth in Twombly and applying it to a motion to intervene; A complaint [or intervention] must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” “[D]etailed factual allegations” are not required, Twombly,550 U.S., AT 555, 127 S.CT. 1955, but the Rule does call for sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face,” id., at 570, 127 S.CT. 1955. A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for  the misconduct  alleged. Id., at  556, 127 S.CT. 1955. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

27 “Also, to allow the complaint in intervention to expand the claims, class definition, and legal theories at this stage would substantially delay the action. See FED.R.CIV.P. 24(B)(3). Balancing these factors against any prejudice to the Joneses if their complaint is not allowed as proposed, the court finds that the complaint in intervention shall be allowed but it shall be limited to the claims, class definition, and legal theories now before the court in the second amended complaint. See Angel Flight of Georgia, Inc. v. Angel Flight America, Inc., 272 FED. APPX. 817, 819 (11th Cir. 2008) (setting forth the four factors for the court to consider when assessing the 

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.

a.                 Below is the Table of Contents for the Burkes Motion to Intervene.

 The Burkes motion addressed all the requirements which joint opposing counsel claim the Burkes failed to answer. That argument is quite simply balderdash.

(1)              MOTION TO INTERVENE

 The Applicants are retired residents of Kingwood, Texas. As homeowners and US citizens they have a vested and material interest in the outcome of this case.

The Applicants seek to intervene in this case to protect their interests in their homestead …and that of similar homeowners nationwide.

(2)              THE APPLICANTS ARE KNOWN BY THE PARTIES

The Applicants homestead is currently under wrongful order of foreclosure where Ocwen Loan Servicing, LLC, is the alleged mortgage

timeliness of a motion to intervene).” –Edwards v. Accredited Home Lenders, Inc., CIVIL ACTION NO. 07-0160-KD-C, at *3-4 (S.D. Ala., 2009) servicer for the Bank in the Applicants case, namely Deutsche Bank National Trust Company.

The Applicants are currently Plaintiffs in a new case, recently removed to the Southern District Federal Court, Houston Division against Defendants, Ocwen Loan Servicing, LLC.

Furthermore, the Applicants wrote to CFPB attorneys (named in this Florida case) prior to filing this case in Houston and based on this Florida filing.

(3)              THE APPLICANTS MEET THE STANDARDS OF RULE 24

 In relation to this motion, the Applicants can prove quantifiable monetary damages and imminent ‘injury in fact’. They meet the necessary legal tests and burdens to become intervenors in this case.

(4)              THE APPLICANTS REPRESENT DISTRESSED HOMEOWNERS

 The Applicants can provide direct facts, evidence and an experienced viewpoint to this case. There is no need for expensive and time- consuming subpoenas, motions, discovery requests or expert witnesses…

(5)              TEXAS SUPREME TASK FORCE MEETING (EXTRACT)

 There is an organized market in MSRs that really makes up maybe as much as 40 to 50 percent of any mortgage company’s assets, and they acquired this – their status of being a servicer through the purchase of an MSR most of the time, or they did it themselves, they created their own loan.

So, finding a document that says, “I am the owner and holder, and I hereby grant to the servicer the right to foreclose in my name” is an impossibility in 90 percent of the cases.”

– Michael Barrett, (deceased) of BDFTE (Foreclosure Mill)

(6)              PAST SETTLEMENTS ARE INSUFFICIENT REMEDY

For those homes that the banks and mortgage servicers felt were financially lucrative “flips”, they would sell the properties at foreclosure for absurdly low prices to themselves. This is where the greed becomes scandalous and where Ocwen is a controlling operator as detailed herein.

(7)              OCWEN IS GAMING THE SYSTEM – WITH HELP

Mergers and acquisitions (since the financial collapse of 2008) in the financial industry has spawned into a dubious monopoly of key corporations.

For example, Ocwen, despite its decade-long public censures throughout the nation, has recently acquired PHH Corp., substantially increasing its foothold in the lucrative mortgage servicing vertical.

With immediate effect, Ocwen has been given a controlling market interest – a monopoly. “Keep doing what you’re doing is the message to Ocwen”. This does not bode well for consumers and homeowners.

(8)              TEXAS SUPREME TASK FORCE MEETING (EXTRACT)

 BASTIAN: Well, part of that in Florida, their foreclosure statute says only the owner and holder of the note can bring the foreclosure, and MERS wasn’t the owner and holder of the note, and yet everybody  was pleading them as the owner and holder of note. All they were was the mortgagee of record in the land title records, and it got everybody confused, and like anything new, it just created problems.

BARRETT: Well, MERS was at great –greatly at fault for creating all of those impressions. They may be supposed to be merely a registrant, but they haven’t acted as a registrant. They have acted as a for-profit business, and they have gone out and tried to get into the default servicing business. At one point in time they considered themselves a huge competitor for doing foreclosure business, and they went out and marketed their services to bring foreclosures.

(9)              AN INTERVENTION FOR CONSTRUCTIVE CHANGE

The Applicants seek to become Intervenors in this lawsuit to (1) make a “material” impact on this Florida case, (2) help save their own homestead from wrongful foreclosure and (3) help homeowners in “distress” nationwide.

As unfortunate as it is, the Applicants are seasoned foreclosure veterans and victims of this scandal, which has opened their eyes and ears to the “hidden secrets of the foreclosure industry”, facts which are “personally known” by the Applicants.

(10)         THE CONSUMER FORECLOSURE TASK FORCE

REDDING: Well, the other problem –Judge, this is Tim Redding. The other problem that I see– and, Tommy, you and I talk about it regularly — that we have a bunch of servicers that are corporations or trusts attempting to foreclose on behalf of other trusts using a power of attorney, and I don’t think that’s really proper. I mean, we all kind of turn a blind eye to it but think that’s an issue that’s out there that somebody could use to potentially attack a foreclosure.

Wouldn’t you know it, 12 years later and the settlement by OCWEN in the Maine Consent Order seems awfully like what Tim Redding said in Texas….

 (11)         RECOMMENDATIONS

 The Applicants would propose that CFPB, as part of this case along with Applicants, seek disclosure of the following by mortgage servicers and Ocwen to help transparency and remove any veils of corporate secrecy….(then lists and provides details of recommendations, starting with Ocwen Loans…)

(12)         CFPB COMPLAINT SUMMARY

 “The Consumer Financial Protection Bureau (“Bureau”) brings this action against Ocwen Financial Corporation, Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC (collectively “Ocwen” or “Defendants”) under Sections 1054 and 1055 of the Consumer Financial Protection Act of 2010 (“CFPA”), 12 U.S.C. §§ 5564 and 5565.

Ocwen is one of the largest mortgage servicers in the United States. The Company specializes in servicing the loans of distressed borrowers. It committed numerous violations of Federal consumer financial laws that have harmed borrowers. Among other things, Ocwen has improperly calculated loan balances, misapplied borrower payments, failed to correctly process escrow and insurance payments, and failed to properly investigate and make corrections in response to consumer complaints. Ocwen has compounded these failures by illegally foreclosing upon borrowers’ loans and selling loan servicing rights to servicers without fully disclosing or correcting errors in borrowers’ loan files.”

(13)         HOW MANY TIMES DO YOU FORGIVE OCWEN?

This is not the first rodeo for CFPB v Ocwen. On Dec 19, 2013, the California Attorney General, Kamala D. Harris announced a $2.1 Billion Mortgage Settlement with Ocwen Financial Corporation and Ocwen Loan Servicing, LLC (Ocwen) over mortgage servicing misconduct.

This agreement is with a total of 49 states (including Texas) with $2 billion used to cover loan modifications and principal reductions for the people who lost their homes between Jan. 1, 2009 and Dec. 21, 2012, and those people whose loans were serviced by OCWEN.

OCWEN took advantage of borrowers at every stage of the process”, said Richard Cordray, Director of the federal Consumer Financial Protection Bureau.

(14)         THE APPLICANTS REACHED OUT TO CFPB

Applicants contacted Plaintiffs’ counsel on November 9, 2018, for advice and guidance. The Applicants were preparing to submit to Texas State Court and wrote to several attorneys for the CFPB, as listed in this Florida case. One of the attorneys, Ms. Jean M. Healey, Senior Litigation Counsel responded on November 23rd, stating, in part:

“While the Bureau cannot provide legal representation or individual legal advice as part of the lawsuit, we filed against Ocwen, the Bureau’s website also contains information about resources available to consumers.”

(15)         THE APPLICANTS REACHED OUT TO OCWEN

 The Applicants have written directly to Ocwen several times in recent months,14 only for silence in return (Ocwen’s Motto is rather empty). The Applicants do not anticipate any change in that position and hence it would be prudent to assume they will be opposed to this motion, for reasons set forth herein

(16)         LEGAL STANDARD

 An applicant may intervene as of right when the applicant :

  • makes a timely motion; The original CFPB complaint, Doc. 1 was filed, April 20,

The current latest recorded filing is dated, Dec 3, 2018, Doc. 209, an Order pertaining to discovery requests. The parties are still gathering information. The case has yet to reach trial, there is no final order. This intervention would not be prejudicial to the parties as it will not disrupt a final judgment. This motion is timely….

[and the Burkes detail and answer every legal standard in this section].

(17)         PRIOR INTERVENOR APPLICATIONS

 In similar CFPB lawsuits, intervenors have enjoyed a level-playing field and their applications have been approved e.g. in the District of Delaware case;

CONSUMER FINANCIAL PROTECTION BUREAU v. THE NATIONAL COLLEGIATE MASTER STUDENT TRUST, et al. (No.

17-1323 (MN)) several parties were successful, despite objections.

“Before the Court are eight motions to intervene in the current litigation between the Consumer Financial Protection Bureau (“CFPB”) and

fifteen Delaware statutory trusts, called the National Collegiate Student Loan Trusts ( collectively “the Trusts”).

Ruling: For the reasons discussed below, the Court grants each of the motions to intervene and places no limitation on the intervenors’ participation in this litigation.”.

(18)         THE APPLICANTS AS STAKEHOLDERS

 Furthermore, the Applicants would enjoin, for the most part, with the Plaintiffs’ opinions and could ensure that, if successful, the proposed order or settlement terms are improved, so that the affected consumers and homeowners will properly benefit from the judgment, including any monetary damages and orders, as directed by this honorable court.

This would give homeowners as stakeholders much overdue relief that they will not be subject to unlawful evictions and loss of the homestead to wrongful foreclosure in the future (as well as the accounting and other grievances listed in this lawsuit).

(19)         CONCLUSION & PRAYER

 The Applicants respectfully requests that this Court grant the Applicants motion to intervene as of right pursuant to Rule 24(a) or alternatively with permission pursuant to Rule 24(b).

(20)         CERTIFICATE OF SERVICE

 b.                 Below is the Table of Contents for the Burkes Memorandum

 In Support of the Motion to Intervene with short extracts (from the actual memorandum) to expand on the headings. It addressed all the requirements which

joint opposing counsel claim the Burkes failed to answer. That argument is quite simply nonsense.

(1)              INTRODUCTION

 What follows, is a historic look at the events from the financial collapse of 2008 as a direct result of the decisions and appointments within government and the banking industry that lead to this case.

It’s an oversight of (i) why this case is in court, (ii) why the past cases between the parties and the settlements agreed made little impact to those it sought to provide relief (the consumers) and (iii) why the Applicants should be allowed to intervene, as “real” consumers with proven “injuries”.

(2)              BLAISDELL v. MNUCHIN

 Shockingly, government has recently turned to the “Foreclosure King” Steve Mnuchin (formerly IndyMac/OneWest) as US Treasurer and Joseph Otting, former CEO of OneWest (now CIT) to the OCC.

It begs the questions, why is government, and in particular, the part of government that controls mortgages and lending, led by Mnuchin? Mnuchin, based on financial disclosures, is receiving over $1,000,000 in payments from companies where the directors of these companies lead back to Short Sale and Distressed Property Foreclosure businesses, as well as Ocwen, which his Government and departments (CFPB) are suing right now in this very case – a conflict of interest.

(3)              FINANCIAL FREEDOM (REVERSE MORTGAGES)

 The government had alleged Financial Freedom Senior Funding, a division of OneWest, where Otting was CEO, bilked taxpayers by wrongfully foreclosing on borrowers and then sticking the government with excess insurance payments on federally insured reverse mortgages.

(4)              CONSENT ORDER TO ONEWEST (APRIL 2011)

Historically, this is what happened: On December 31, 2008, the FDIC signed a letter of intent to sell, for approximately $13.9 billion, the banking operations of IndyMac (the Applicants original lender) to a thrift holding company owned by a consortium of private equity investors led by Steven T. Mnuchin of Dune Capital Management LP.

The investor group includes Dune Capital, J.C. Flowers & Co., Stone Point Capital, Silar MCF-I LLC (an affiliate of Silar Advisors, LP) and investment groups controlled by George Soros, John Paulson and Michael Dell. The thrift holding company will capitalize IndyMac with approximately $1.3 billion in cash.

In summary, these are detrimental and catastrophic government appointments for homeowner and consumers. There is a blatant conflict of interest.

(5)              THE ROBOSIGNING SCANDAL – ONE CONVICTION IS A TOKEN MESSAGE

 Despite overwhelming votes for the inclusion of SB830, Abbott alarmingly vetoes the proposed Texas legislature that would restrict mortgage servicers racking up unaccountable and unconstitutional fees and interest.

“Senate Bill 830 imposes burdensome new regulatory and paperwork requirements on those who offer seller-financed mortgages. This sort of regulation could increase the price and reduce the availability of these mortgages.” –Greg Abbott, Governor, TX, June 2017.

(6)              PREDATORY LENDING EXECUTIVES ARE SIPPING MIMOSAS WITH WISPY FINES AND NO JAIL TIME

 “It Was Greed.” A Message to Bankers from the FDIC v. Van Dellen Jury.

If you read the Center for Responsible Lending (CRL) report; “Indymac: What Went Wrong?” dated June 30, 2008 it includes;

“I would reject a loan and the insanity would begin,” one former IndyMac underwriter told CRL. “It would go to upper management and the next thing you know it’s going to closing. . . . I’m like, ‘What the Sam Hill? There’s nothing in there to support this loan.’ ”

(7)              SELF GOVERNMENT IS NOT POSSIBLE UNLESS THE CITIZENS ARE ALLOWED TO INTERVENE IN CASES

 Contrary to common belief and as written in motions throughout the nation, penned by judges and researched by the clerks of the court, not all citizens are “conspiracy theorists” writing illegible and highly charged motions, making unfounded statements.

No, many are simply frustrated by the fact they feel abandoned and that the judiciary is a daunting, complex and unforgiving arena, on top of which has a cost of entry which is just too high for the common person to afford, especially in the given circumstances.

(8)              WHAT THE QWR IS GOING ON WITH ACCOUNTING?

 For the purposes of this Application, the Applicants will wish to raise an issue with obtaining information from Ocwen, pertaining to regular accounting and confirmation of the fact they actually are “authorized” mortgage servicers in the Applicants own mortgage, as claimed by Ocwen.

(9)              MORTGAGE SERVICER FIVE YEAR TRANSFER HISTORY

 A question for the CFPB and Ocwen would help in the Applicants litigation and this law suit: Does the CFPB need to amend RESPA to make it even more “plain English” than it already is for courts to allow homeowners to get basic accounting and ownership validation from mortgage servicers and/or lenders?

If, as in this case, a former servicer transfers the “file” to a new servicer – and this file includes all historical accounting data, it begs the question: How can a mortgage servicer legally avoid this request? In the Applicants case, the alleged servicer Ocwen shows nothing as far as payments from the borrower, relying on its statement opening date of 2010, rather than 2007, when the disputed mortgage loan commenced. (This should not be confused with complete loan accounting records, which are to be kept for a minimum of ten years).

(10)         TEXAS SUPREME TASK FORCE MEETING (EXTRACT)

 BARRETT: “Barrett Burke, for example, is an entirely paperless outfit. We don’t keep paper. – Barrett of BDFTE, Foreclosure Mill, Addison, Texas.

(11)         INDYMAC, STEVE MNUCHIN, OCWEN AND MORTGAGE SERVICING

 The FDIC as receiver, severed the debt (the MSR) from the security (the Note). Deutsche Bank, despite their lawsuit against FDIC, were just another “third-tier” creditor that lost 100% of its investment (in IndyMac Bank), as standard for any third-tier creditor when the bank became insolvent. The “paper” note they hold is worthless. That’s what the record supports.

(12)         THE CFPB REVEALS ITS OWN CONFLICT OF INTEREST

 The CFPB very recently made an alarming move. The CFPB wrote an Amicus Brief for the pending Obduskey Supreme Court case and in support of debt collecting foreclosure lawyers.

(13)         SUMMARY FROM PRO SE HOMEOWNER APPLICANTS

 These lawsuits are very subjective, and the consumers and homeowners are not being included as stakeholders nor allowed to have a voice. Here is an opportunity for these parties to effect positive change by listening, engaging and working together for the common good of the people.

(14)         CONCLUSION & PRAYER

 The Applicants respectfully requests that this Court grant the Applicants motion to intervene as of right pursuant to Rule 24(a) or alternatively with permission pursuant to Rule 24(b).

(15)         CERTIFICATE OF SERVICE

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.”

28 “The massive checking overdraft litigation case in Florida is plodding along, though Union Bank settled shortly after class certification. Over the opposition of lawyers for Wells Fargo and JPMorgan Chase, I intervened pro se as a party to the case, allowing me to petition the court to unseal documents and exhibits. DIY legal work!” See http://www.jeffhorwitz.com/american-banker-stories/

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.

29 MR. SINGELMANN: “As the Consumer Financial Protection Bureau, our mission is to protect consumers. So critical to the purpose of our complaint is providing remediation and restitution to harmed borrowers.” –Transcript Doc. 129, p.7. The Bureau has failed ‘to protect’ the Burkes or provide any ‘remediation and restitution’. The Bureau has repelled the Burkes, in contravention of their mission statement.

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’

30 It should be noted, “Substantive due process” simply enforces the Constitution’s promise that government will not arbitrarily infringe individual rights, or act in ways that exceed the implicit limits on lawmakers’ authority. But because arbitrariness or the rightful limits on government power are matters that cannot be understood except by reference to moral considerations, enforcing the Due Process of Law Clause requires courts to address controversial principles of political philosophy.

31 PAPERLESS ORDER: “…the Court expects better of counsel. The parties’ counsel has professional and ethical duties to attempt to resolve, and not exacerbate, discovery disputes in this matter…”

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

32 “Despite appellees’ suggestions that Flynt should seek other avenues to challenge the sealing of these judicial records, other courts have found they “are not willing to create a special category of non-Rule 24 intervention for third parties who wish to challenge protective orders through informal motion.” Pub. Citizen,858 F.2D AT 784. We agree. In fact, for reasons of judicial efficiency, Rule 24(b) intervention in such instances may often be preferable to the third party filing a separate action. Accordingly, Rule 24(b) intervention was the proper procedural mechanism for Flynt to intervene in the Ringo and Zink cases.” -Flynt v. Lombardi, 782 F.3d 963, 967 (8th Cir. 2015)

33 The Pansy case (3rd Circuit) was also cited in Flynt by the court (8th Circuit) in their Opinion and Order granting intervention, under the heading ‘Standard of Review’.

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

34 See Docs. 80, 81, 82, 83, 84, 86, 89 and Altisource’s filing Doc. 96; Third-party Altisource Solutions, Inc. Response Opposing Request to Unseal Filings and Doc. 125 Judge Marra Order, in part; “John Wilen, the member of the public [actually, he’s a journalist] requesting the unsealing of the documents, has not demonstrated a substantial need for the requested documents other than asserting that they are ‘of great public interest.’ The Court finds that Altisource’s interest in keeping the information at issue confidential would outweigh any right of Mr. Wilen to access discovery information. Therefore, DE 87 and DE 88 shall remain sealed.”

35 Epstein and his criminal defense attorneys, Roy Black and Martin Weinberg, moved to intervene for the limited purpose of challenging the disclosure and use of the correspondence they wrote during  plea  negotiations.  After  the  district  court  granted  their   permissive   intervention, FED.R.CIV.    P.    24(B),    the intervenors moved    for    protective    orders.  The intervenors argued that the work-product privilege protects  their  correspondence; that FEDERAL RULE OF EVIDENCE 410 and FEDERAL RULE OF CRIMINAL PROCEDURE 11 create a privilege for plea negotiations; and that their correspondence contained confidential grand jury material. -Doe v. United States, 749 F.3d 999, 1003 (11th Cir. 2014)

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.

36 “The CFPB notified Altisource that, in response to certain document requests received from Ocwen in this lawsuit, the CFPB intended to produce to Ocwen certain materials resulting from the CFPB’s investigation of Altisource.” – Doc. 96, p.2

37 It is black letter law in Florida that to disregard this corporate fiction and hold the corporation’s owners liable — to “pierce the corporate veil” — the plaintiff must prove it -Molinos Valle Del Cibao, C. por A. v. Lama, 633 F.3d 1330, 1349 (11th Cir. 2011). Adding the alter-ego Altisource to the proceedings would allow the Burkes to do so, if intervention was granted.

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

CERTIFICATE OF SERVICE

We hereby certify that, on January 26, 2020, a true and correct copy of the foregoing Brief of Appellants was served via the Court’s EM/ECF system to the attorneys of record per the CIP listing enclosed herein.

         s/ Joanna Burke                       

JOANNA BURKE

         s/ John Burke                           

JOHN BURKE

CERTIFICATE OF COMPLIANCE

The undersigned counsel certifies that this brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because this brief has been prepared in proportionally spaced typeface using Microsoft Word in Times New Roman 14-point font, with the exception of footnotes, which are in proportionally spaced typeface using Microsoft Word 2010 in Times New Roman 12-point font.

This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 12,995 words, excluding the parts exempted under Fed. R. App. P. 32(f).

         s/ Joanna Burke                       

JOANNA BURKE

 

         s/ John Burke                           

JOHN BURKE

A MESSAGE TO THE CFPB, THE ‘CONSUMER WATCHDOG’

In determining whether a document is a judicial record, we evaluate the “relevance of the document’s specific contents to the nature of the proceeding” and the degree to which “access to the [document] would materially assist the public in understanding the issues before the … court, and in evaluating the fairness and integrity of the court’s proceedings.” Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 166–67 (2d Cir.2013).

While “the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access,” Lugosch, 435 F.3d at 119 (internal quotation marks omitted), a document is judicial not only if the judge actually relied upon it, but also if “the judge should, have considered or relied upon [it], but did not.” Id. at 123 (internal quotation marks omitted). Such documents “are just as deserving of disclosure as those that actually entered into the judge’s decision.” Id. (internal quotation marks omitted).

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139-40 (2d Cir. 2016)

General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 19-13015 Docketed: 08/05/2019
Nature of Suit: 2890 Other Statutory Actions
Joanna Burke, et al v. OCWEN Financial Corp., et al
Appeal From: Southern District of Florida
Fee Status: Fee Paid
Case Type Information:
     1) U.S. Civil
     2) U.S. Defendant – Non PLRA
     3) –
Originating Court Information:
     District: 113C-9 : 9:17-cv-80495-KAM
     Civil Proceeding: Kenneth A. Marra, Senior U.S. District Court Judge
     Secondary Judge: William Donald Matthewman, U.S. Magistrate Judge
     Date Filed: 04/20/2017
     Date NOA Filed:
     08/02/2019

02/21/2020 Open Document ORDER: “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor” is DENIED. [8992909-2] JP [Entered: 02/21/2020 02:17 PM]
02/25/2020 Open Document TIME SENSITIVE MOTION for extension of time to file appellee’s brief to 03/11/2020 filed by Ocwen Mortgage Servicing Inc., Ocwen Loan Servicing LLC and OCN. Motion is Unopposed. [9017598-1] [19-13015] (ECF: Matthew Sheldon) [Entered: 02/25/2020 11:28 AM]
02/25/2020 Over the phone extension granted by clerk as to Attorney Bernard John Barrett, Jr. for Appellee Consumer Financial Protection Bureau. Appellee’s Brief due on 03/11/2020 as to Appellee Consumer Financial Protection Bureau.. [Entered: 02/25/2020 11:57 AM]
02/25/2020 Open Document ORDER: Motion for extension to file appellee brief filed by Appellees Ocwen Loan Servicing LLC, OCN and Ocwen Mortgage Servicing Inc. is GRANTED by clerk. [9017598-2] Appellees brief due on 03/11/2020. [Entered: 02/25/2020 12:19 PM]
03/06/2020 Open Document ORDER: The Clerk’s Office is DIRECTED to seal “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor.” ENTERED FOR THE COURT – BY DIRECTION [Entered: 03/06/2020 09:36 AM]
03/09/2020 Open Document MOTION to unseal filed by John Burke. Opposition to Motion is Unknown. [9028354-1] [19-13015] (ECF: John Burke) [Entered: 03/07/2020 04:08 PM]
03/11/2020 Open Document Certificate of Interested Persons and Corporate Disclosure Statement filed by. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 03:44 PM]
03/11/2020 Open Document Appellee’s Brief filed by Appellee Consumer Financial Protection Bureau. [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 04:33 PM]
03/11/2020 Open Document APPEARANCE of Counsel Form filed by Edwina Clarke for OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc. [19-13015] (ECF: Edwina Clarke) [Entered: 03/11/2020 06:43 PM]
03/11/2020 Open Document Appellee’s Brief filed by Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [19-13015] (ECF: Sabrina Rose-Smith) [Entered: 03/11/2020 06:58 PM]

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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