US Gov. Enforcing Lawless Writ Which Silences Truth to Steal Texans Homes by Federal Judges in 2025

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

PRELIMINARY STATEMENT

“A district court judge may reconsider a magistrate judge’s order on pretrial matters “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A).” – United States v. Davis, No. 23-50797, at *1 (5th Cir. Feb. 21, 2024)

Court Procedures and Local Rules are Cancelled

Plaintiff and nonprisoner Joanna Burke wishes to notify the District Court Judge that the court’s local rules and his own court procedures have been completely cancelled by veteran Magistrate Judge Christina A. Bryan (“MJCAB”).

This is clearly erroneous, contrary to the law and the court’s own rules, all to circumvent due process and Plaintiff’s constitutional right to a fair and impartial tribunal.

This is a manifest error of law, “that is plain and indisputable, and that amounts to a complete disregard of the controlling law” (United States v. Newton, CRIMINAL H-19-816-01, at *1 (S.D. Tex. Aug. 23, 2024) supported by irrefutable evidence, as discussed herein.

USPS Mail Delivery Denials and Court Docket Manipulation

It is critical Plaintiff alerts the District Judge that the docket during these proceedings have been in complete disarray due to delivered mail from the Plaintiff not being docketed or docketed timely, and where Plaintiff reserved her rights regarding these concerns in each of her pleadings.

For example, on September 10, 2024, when the Plaintiff attempted to email pleadings to the court’s case manager, Jenelle Gonzalez due to known mail disruptions, this attempt to reach out was never acknowledged by the court, and the resulting order(s) never considered the emailed notice(s) or pleading(s).

Compare with Judge Eskridge in Redevelopment Capital Partners LLC v. N. Am. Recovery Mgmt., CIVIL ACTION No. 4:19-cv-03248, at *4 (S.D. Tex. Apr. 28, 2020)

(“Defendant Jason Inoff acting pro se requested and obtained permission to email his response to the Court.”).

Yet, on the other hand, the court emailed Joanna Burke for purported assistance regarding USPS Express Mail which the court signed for but was deemed “missing” or “lost”.

See; Letter dated and posted Dec. 3, 2024, ECF 46 (Dec. 6, 2024), and Letter dated and posted Dec. 13, 2024, docketed as ECF 49 (Jan. 2, 2025).

Remarkably, this USPS Express Mail item, which arrived and was signed for on Nov. 15, 2024, was docketed over two months later (Jan. 23, 2025), on the very same day the omnibus of Orders were released by MJCAB (Jan. 23, 2025).

Relatedly, ECF 60, Plaintiff’s Response and Objections to PHH’s (Jan. 10, 2025) Motion for Leave to Exceed Word Limit [50] (which PHH inexcusably filed 158 days late) re PHH’s deficient Motion for Summary Judgment [27] (docketed Aug. 5, 2024) and posted on Jan. 14, 2025 would unbelievably take two weeks for the pleading to be date-stamped on Jan. 28, 2025, and then docketed on Jan. 29, 2025.

It is unbelievable because Plaintiff had posted two regular mail letters simultaneously on that day, both sent to PO mailboxes from 77339. One going to zip 77244, the other to 77208:

Upon map review, these destinations are only 33 mins apart.

Zip 77244 responded to their letter on Jan. 24, 2025 but 77208, which is where mail is delivered for this Court, would suggest that they only received the item at least four days later, on Jan. 28, 2025 and docket it on Jan. 29, 2025.

All this is material because response deadlines were set at 14 days.

As such, Plaintiff’s filing would have to be on the docket by no later than Jan. 24, 2025.

Plaintiff avers the court received her response no later than the item going to zip 77244, which they responded to on Jan. 24, 2025.

Thus, her pleading would have been timely, however, by altering the date-stamp and delaying the docketing date beyond this period, this would deem Plaintiff’s response as late.

In other words, this court demands every single motion or pleading be hand-delivered to the court to ensure delivery is recorded and timely docketed but will excuse a deficient Motion for Summary Judgment without leave and belatedly filed over 5 months later.

Plaintiff asserts these are premeditated, ultra vires acts by officers of the court.

Additionally, to date Plaintiff has not received a mailed copy the three Orders ECF 54, 55 and the Order subject to this motion, 56.

Furthermore, the Plaintiff notes the court posted ECF 58, (MEMORANDUM AND RECOMMENDATIONS re 27 MOTION for Summary Judgment) on Jan. 28, 2025, five days after it was signed and docketed;

ECF 57, (MEMORANDUM AND RECOMMENDATIONS re 33 Verified MOTION to Dismiss for Lack of Jurisdiction) on Jan. 29, 2025, six days after it was signed and docketed.

The third and final ECF 58, MEMORANDUM AND RECOMMENDATIONS re 28 MOTION to Declare Plaintiff as a Vexatious Litigant is postmarked Jan. 29, 2025, six days after it was signed and docketed.

As this court is aware, pro se Plaintiff Joanna Burke is elderly, however, this court generally denies electronic filing.

Plaintiff does not receive email notices or court docket movements.

But, compare: Lewis v. CrossCountry Mortgage (4:23-cv-04568), ECF 11, ORDER granting 9 Motion to File Electronically.

(Signed by Magistrate Judge Christina A Bryan) Parties notified.(MelissaMorgan, 4) (Entered: 01/16/2024).

Plaintiff relies upon USPS Mail to send her filings to this court’s mailing address, or deliver in-person.

Meanwhile, PHH has the luxury of electronic filing 24-7.

As such, Plaintiff is bound by the integrity of the court and staff to docket delivered mail on a timely basis, and for the court to address time-sensitive motions.

Neither has occurred during these proceedings.

See; Inocencio v. Wal-Mart Stores Tex., CIVIL ACTION No. H-20-3321, at *4-5 (S.D. Tex. Dec. 23, 2020)

(Explaining ECF system and procedures adopted by this court, effective 2007).

Now, considering the short 14-day window to reply to the omnibus of Orders and M&R’s released on Jan. 23, 2025, Plaintiff asserts the court’s delinquent acts need to be documented on the record, when contemplating the recent ‘romance scandal’ and litigation surrounding disgraced former Chief Judge David R. Jones and his ex-clerk, Elizabeth “Liz” Freeman.

This is even more so, considering the hostile and unfounded allegations in M&R [58] by Magistrate Judge Bryan:

“Based on the procedural history set forth above, Burke’s…harassing social media posts, PHH asks the Court to declare Burke a vexatious litigant and to impose on her a pre-filing injunction.”

“Furthermore, PHH, the current Defendant, has been burdened by Plaintiff’s continued litigation, as have various lawyers and government officials in the court system that have come into contact with the Burke litigation.”

This is not an isolated case.

It is a continuation of Plaintiff’s experience with the Southern District Bankruptcy Court, as detailed in Burke v. Deutsche Bank National Trust Company (24-03056) United States Bankruptcy Court, S.D. Texas – ECF 10:

Motion to Reconsider (related document(s):4 Order Dismissing Adversary Case). Filed by Joanna Burke (dah4) (Entered: 06/24/2024)

(Highlighting Clerk Rios falsely denying receipt of USPS Express Mail, stating in an email:

“We (the Court) does not have an Adversary Case on file.”.

Plaintiff received a date and timestamped copy of the pleading in her mailbox from the court, contradicting the dishonest clerk’s written statement.

In summary, this is not a minor or isolated issue:

USPS Mail Delivery Denials:

Delays or denials in mail delivery have led to perceived missed deadlines, enabling the court to favor PHH by issuing orders without considering Plaintiff’s arguments.

This has reduced the time available for Plaintiff to submit responses and has materially contributed to overall inefficiencies in these legal proceedings, thus prejudicing Plaintiff over PHH.

Court Docket Manipulation:

Manipulating dockets, such as denying receipt of pleadings that have been signed for by the court, altering timestamps, backdating or delaying document uploads, undermines the integrity of the judicial process.

These actions have led to unfair advantages, eroded trust in the judiciary’s ongoing denial of electronic filing permissions in this modern age and have resulted in unjust outcomes which will gravely affect the Plaintiff’s life, liberty and protected property rights.

Evidence

In light of US District Judge Lee Rosenthal’s MEMORANDUM AND OPINION. ECF 35, Feb. 4, 2025, in Kafi, Inc. v. Fairgate Trust (4:23-cv-04217), District Court, S.D. Texas, there is no reason to doubt the accuracy of Joanna Burke’s declaration.

As such, all facts in support of the mail malfeasance are taken as true and supporting evidence can be presented later.

This is especially true as mail is still pending delivery or docketing, and these proceedings are not yet finalized.

STATEMENT OF FACTS

On Thursday, Jan. 23, 2025, MJCAB issued a collective set of three Orders and three Memorandum and Recommendation(s) (“M&R”) [ECF 54, 55, 56, 57, 58 and 59].

The court also filed three of Plaintiff’s “lost” or “missing” pleadings which were backdated to Nov. 15, 2024 [ECF 51, 52 and 53].

Relevant here: Plaintiff’s Nov. 15 Pleading 53, and court Order 56 which cites to the M&R 59.

The M&R recorded as ECF 59 provides four curt headliner reasons in relation to PHH Mortgage Corporation’s (“PHH”) deficient Second Motion to Declare Plaintiff a Vexatious Litigant, and the Plaintiff’s opposition.

For reasons explained in the Argument section below, the motion itself is moot, and the recommendation should be fully rejected.

For the purposes of analysis, this leaves the operative pleadings which were considered in her M&R as ECF 28 [PHH Vexatious Litigant Motion]; ECF 34 [Plaintiff Response]; ECF 41[PHH Reply].

This Order’s denial now excludes ECF 53 [Leave to file Surreply and Surreply] which has been in the court’s possession since Nov. 15, 2024, but only docketed [backdated] on Jan. 23, 2025, the very same day as the omnibus of Orders and M&R’s were released.

As a result, the Surreply was not only denied, but therefore unavailable to PHH for response, as happened in the Motion for Summary Judgment.

Justice Requires Full Argument and Fairness to All

In reversing this court, Fifth Circuit Judge James Ho recently stated:

“Our adversarial system of justice requires that we give both sides full and fair opportunity to present their strongest possible arguments to the court.

It is through that clash of ideas that we ensure that justice is done pursuant to the laws that govern the dispute in question.”

-Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.).

MJCAB has rejected this notion once more by denying the combined Motion for Leave with Surreply [53], in violation of Fifth Circuit precedent, which states (at 774):

“The district court therefore abused its discretion by denying Anadarko leave to file a sur-reply.”

STATEMENT OF THE ISSUES

Disclaimer: The Plaintiff submitted her timely objection(s) by ensuring they were filed directly with the clerk in compliance with the 14-day rule, confident that this court would not decide any pending motions prior to the expiration of this deadline, or before receipt of the objection(s).

1.         Whether the court should entirely reject the Magistrate Judge’s M&R [59], and/or stay these proceedings considering PLAINTIFF’S MOTION TO CERTIFY QUESTIONS TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT and PLAINTIFF’S MOTION TO STAY OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME RE ECF ENTRIES 51-60.

2.         Whether MJCAB’s abrupt M&R and related Order, which failed to address Plaintiff’s well-reasoned arguments, nor provide reasons with supporting legal authority is sufficient to deny Plaintiff’s response, motion for leave and surreply.

3.         Whether MJCAB should have addressed the merits of the response and [denied] surreply, applying the same standard the Fifth Circuit held when eviscerating this court in Hager v. Brinker Tex., Inc., 102 F.4th 692, 697 (5th Cir. 2024), and considering the severity of the M&R’s final recommendation and the implications to the Plaintiff’s liberty and protected property rights.

4.         Whether the court agrees with Plaintiff insofar as the Magistrate Judge’s M&R and related Order constitutes an abuse of discretion, because she has willfully and knowingly defied the Fifth Circuit’s very recent admonishment by replicating the same conduct in this case, see: Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.), reversing this court for the same issue less than nine months ago.

APPLICABLE LEGAL STANDARDS

Objections, Timeliness and Standard of Review

U.S. v. Rodriguez, Criminal No. G-04-01, Civil Action No. G-06-458, at *3 (S.D. Tex. July 31, 2006)

(“Failure to file written objections to the proposed findings, conclusions and recommendations contained in this report within the allowed time SHALL bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court, except upon grounds of plain error or manifest injustice.”).

Reconsideration

A motion to reconsider an interlocutory ruling is governed by Federal Rule of Civil Procedure 54(b).

Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (2017).

A district court may reconsider an order “for any reason [a court] deems sufficient,” id., “even in the absence of new evidence or an intervening change in or clarification of the substantive law,” Pfeiffer v. Ajamie PLLC, No. 4:19-cv-02760, 2020 WL 13420831, at *1 (S.D. Tex. Jan. 27, 2020).

Moreover, the “[c]lassic reasons for granting reconsideration” include that the order rests upon an erroneous factual basis.

Shih v. Blue Cross & Blue Shield of Tex. Inc., No. 4:21-CV-01530, 2022 WL 444476, at *1 (S.D. Tex. Feb. 10, 2022)

(noting that reconsideration is appropriate if “the judgment is based upon a manifest error of fact or law”).

Docket Filings Should Never be Backdated

Tulley v. Ethyl Corp., 861 F.2d 120, 123 (5th Cir. 1988)

(“the judgment, signed December 24, 1987, was apparently entered on the docket sheet at the district court clerk’s office on December 29, and the defendants’ notice of appeal, filed January 27, 1988, was entered on the docket sheet on January 28… The district court’s docket sheet in this case reveals that the order appealed from was not docketed until December 29, 1987, and the filing of the notice of appeal on January 27, 1988 was, therefore, within the 30-day requirement of F.R.A.P. 4(a)(1).”).

Judicial Integrity and Impartiality

Federal judges should always seek to promote confidence that they will dispense evenhanded justice.

See Canon 2(A), Code of Conduct for United States Judges (requiring judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”).

At its core, this judicial impartiality is “the lack of bias for or against either party to the proceeding,” which “assures equal application of the law.”

Repub. Party of Minn. v. White , 536 U.S. 765, 775–76, 122 S.Ct. 2528, 153 L.Ed.2d 694 (1992) (cleaned up);

see also, e.g., Buntion v. Quarterman , 524 F.3d 664, 672 (5th Cir. 2008)

(explaining that defendants’ “right to a fair trial” is in part “fulfilled by a judicial officer who impartially presides over the trial”)

(citing Bracy v. Gramley , 520 U.S. 899, 904–05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) )

…the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.

See , e.g. , United States v. Candelaria-Gonzalez , 547 F.2d 291, 297 (5th Cir. 1977)

(observing that a trial judge “must make every effort to preserve the appearance of strict impartiality,” including by “exhibit[ing] neutrality in his language”).

Even this appearance of bias, whether real or not, should be avoided.

– United States v. Varner, 948 F.3d 250, 256 (5th Cir. 2020).

ARGUMENT

MEMORANDUM AND RECOMMENDATION

“Plaintiff, a veteran litigant proceeding pro se, initiated this case in state court on December 21, 2023, as part of her approximately 14-year effort to thwart foreclosure on residential property located in Kingwood, Texas (Property).”

As recently as December 20, 2024, and in a published opinion, the Fifth Circuit remanded the “veteran litigant(s) [the Walden’s] proceeding pro se, opposed “U.S. Banks latest suit, filed on December 31, 2021, arguing that it had a right to foreclose pursuant to the final judgment the district court issued ” as part of [their] approximately 14-year effort to thwart foreclosure on residential property located in [San Marcos, Texas (Property).”,

and where

“in 2008, the Waldens executed a Texas Home Equity Note (“Note”) and Security Instrument (“Security Instrument”) in the amount of $316,800, and where it is undisputed that “the Waldens have been in default on the Loan Agreement since July 15, 2011.”

–MTGLQ Inv’rs v. Walden, A-19-CV-0992 RP, at *1-2 (W.D. Tex. Aug. 14, 2020).

See; U.S. Bank Tr. v. Walden, No. 23-50662, at *13 (5th Cir. Dec. 20, 2024)

(“Because the district court’s grant of summary judgment is contrary to controlling circuit precedent, we REVERSE the district court’s order granting summary judgment, VACATE the judgment it entered, and REMAND the matter to the district court for further proceedings consistent with Boren.”).

The Plaintiff has listed many more examples during these proceedings, all blanked by Magistrate Judge Christina A. Bryan.

She has also refused to acknowledge or discuss the millions of dollars in judgments, sanctions, fines and misconduct by PHH and their counsel in Texas, as well as former judges and clerks of this courthouse.

Prejudging the outcome of this case was clear upon reassignment and referral commencing with MJCAB’s first Order [31] released on September 18, 2024.

These facts are well-documented in Plaintiff’s pleadings relating to this motion but avoided in the purported M&R and Order(s), which at first blush could be confused with a filing by PHH.

In support, and as summarized in the Statement of Facts and Issues, Plaintiff notes MJCAB lists four reasons why PHH’s motion should be GRANTED, but only discusses PHH’s arguments, by snubbing Plaintiffs Response entirely [ECF 34].

MJCAB fails to address any of Plaintiff’s arguments with legal authorities in support

(See; Montes v. Tibbs, No. 24-20135, at *7-8 (5th Cir. Aug. 16, 2024)).

Plaintiff objects to the entire memorandum’s one-sided reasoning:

A. Ms. Burke has a history of filing vexatious, harassing, and duplicative lawsuits.

Plaintiff denies and objects to A. in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s response [34] and surreply [53].

B. Ms. Burke has no good faith basis for repeatedly pursuing litigation regarding the Property.

Plaintiff denies and objects to B. in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s response [34] and surreply [53].

C. Ms. Burke’s vexatious litigation has placed a burden on the courts and other litigants.

Plaintiff denies and objects to C. in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s response [34] and surreply [53].

D. No alternative sanctions are likely to be adequate to deter Ms. Burke from filing frivolous litigation.”.

Plaintiff denies and objects to D. in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s response [34] and surreply [53].

Conclusion and Recommendation

Plaintiff denies and objects to the Conclusion and Recommendation in its entirety for the well-reasoned arguments with legal citations as incorporated in Plaintiff’s response [34] and surreply [53].

The recommended prefiling injunction cannot stand.

As Plaintiff has discussed throughout these proceedings, including the objections by Plaintiff to these omnibus M&R’s and Orders, MJCAB’s reliance upon this court having jurisdiction is flawed, res judicata is inapplicable, and Judge Hittner’s 2018 order is invalid, void and time-barred as PHH “slept on [its] rights”

-Pie Dev. v. Pie Carrier Holdings, Inc., No. 24-60155, at *7 (5th Cir. Feb. 3, 2025).

MJCAB’s assertions otherwise are without merit and baseless.

See; PLAINTIFF’S MOTION TO CERTIFY QUESTIONS TO THE COURT OF APPEALS FOR THE FIFTH CIRCUIT PLAINTIFF’S MOTION TO STAY OR IN THE ALTERNATIVE FOR AN EXTENSION OF TIME RE ECF ENTRIES 51-60.

(These latest motions with exhibit, proposed orders and cover letter were delivered by USPS Express Mail on Tuesday, Feb. 4, 2025 at 10.17 am and signed for by “T Hannibal” at 3.42 pm.).

As with all MJCAB’s Orders and M&R’s, the procedural due process violations are clear and obvious.

The Fifth Circuit has admonished this court and Magistrate Judge for the very acts repeated here.

In short, this litigation is meritorious, and PHH’s deficient, second motion has been granted improvidently, as it is moot.

After reviewing ECF 34 (Response), Magistrate Judge Bryan has failed to address a single argument by Plaintiff.

Relatedly, MJCAB states:

“The Motion rehashes arguments regarding jurisdiction addressed in other motions”

in her Order denying Motion for leave to file the Surreply.

This is absurd when considering

(i) the M&R snubbed Plaintiff’s entire Response [34]

(Compare with; Jones v. Heuer, No. 24-50348, at *2 (5th Cir. Oct. 14, 2024)

(“The magistrate judge (“MJ”) issued a report and recommendation (“R&R”) analyzing Jones’s numerous claims.”));

and

(ii) the M&R’s and Orders by the Court are themselves guilty of “rehashing” the same arguments.

Common sense answers (ii), that is pleadings and orders are bound to overlap when they are separate but part of the same proceedings.

It’s another inane statement, as court’s frequently end their analysis after disposing the case or claims based on one motion and “mooting” the rest.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. §1746.”, I hereby provide my unsworn declaration. My name is Joanna …, and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

For the reasons outlined above, the Plaintiff requests that the Court reconsiders MJCAB’s Order and Related Memorandum & Recommendation and grant the relief requested herein.

To the extent this court maintains the opinion it has jurisdiction in these proceedings, Order 56 should be reversed, thus accepting all Plaintiff’s responses and surreply pleadings and in light of such a reconsideration,

(i) reject MJCAB’s M&R 59, or

(ii) stay the proceedings based on Plaintiff’s “Certified Questions” motion, or

(iii) remand for reevaluation based on the evidence and argument presented by Plaintiff, or

(iv) deny, strike or deem PHH’s Vexatious Litigant Motion moot based upon related M&R’s and Orders, and

(v) for any and all other relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 6th day of February, 2025.

TO THE HONORABLE JUDGE, AND ALL INTERESTED PARTIES:

PRELIMINARY STATEMENT

“A district court judge may reconsider a magistrate judge’s order on pretrial matters “where it has been shown that the magistrate judge’s order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). ” – United States v. Davis, No. 23-50797, at *1 (5th Cir. Feb. 21, 2024)

Court Procedures and Local Rules are Cancelled

Plaintiff and nonprisoner Joanna Burke wishes to notify the District Court Judge that the court’s local rules and his own court procedures have been completely cancelled by veteran Magistrate Judge Christina A. Bryan (“MJCAB”).

This is clearly erroneous, contrary to the law and the court’s own rules, all to circumvent due process and Plaintiff’s constitutional right to a fair and impartial tribunal.

This is a manifest error of law, “that is plain and indisputable, and that amounts to a complete disregard of the controlling law” (United States v. Newton, CRIMINAL H-19-816-01, at *1 (S.D. Tex. Aug. 23, 2024) supported by irrefutable evidence, as discussed herein.

STATEMENT OF FACTS

On Thursday, Jan. 23, 2025, MJCAB issued a collective set of three Orders and three Memorandum and Recommendation(s) (“M&R”) [ECF 54, 55, 56, 57, 58 and 59]. The court also filed three of Plaintiff’s “lost” or “missing” pleadings which were backdated to Nov. 15, 2024 [ECF 51, 52 and 53]. Relevant here: Plaintiff’s Nov. 15 Motion for Leave [53] and Surreply [53-1], court Order 56 which cites to the M&R 59.

The Order recorded as ECF 56 provides a three-sentence curt response in relation to PHH Mortgage Corporation’s (“PHH”) deficient Second Motion to Declare Plaintiff a Vexatious Litigant, and the Plaintiff’s opposition:

“Plaintiff presents no good cause for granting leave to file a Surreply. The Motion rehashes arguments regarding jurisdiction addressed in other motions. Plaintiff also contends that PHH is asking the Court to interfere with state court proceedings, which is not accurate.”.

As a result, this leaves the operative second pleadings which were considered in her M&R as ECF 28 [PHH Second Motion]; ECF 34 [Plaintiff Response]; ECF 41[PHH Reply].  This Order’s denial now excludes ECF 53 [Leave to file Surreply and Surreply] which has been in the court’s possession since Nov. 15, 2024, but only docketed [backdated] on Jan. 23, 2025, the very same day as the omnibus of Orders and M&R’s were released.

Justice Requires Full Argument and Fairness to All

In reversing this court, Fifth Circuit Judge James Ho recently stated:

“Our adversarial system of justice requires that we give both sides full and fair opportunity to present their strongest possible arguments to the court. It is through that clash of ideas that we ensure that justice is done pursuant to the laws that govern the dispute in question.”. Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.).

MJCAB has rejected this notion once more by denying the combined Motion for Leave with Surreply [53], in violation of Fifth Circuit precedent and where the opinion states unequivocally (at 774):

“The district court therefore abused its discretion by denying Anadarko leave to file a sur-reply.”

STATEMENT OF THE ISSUES

1.         Whether the Court should reconsider the Magistrate Judge’s Order 56, which materially affects the disposition of the case in MJCAB’s M&R 59.

2.         Whether the Magistrate Judge is contradicting herself by allowing surreply in the Motion for Summary Judgment but denying it here, when there are clearly new arguments raised in PHH’s response?

3.         Whether the Magistrate Judge’s three sentences without properly addressing the specific arguments, and without legal authority is sufficient to deny the motion and surreply, considering the severity of the M&R’s final recommendation and the implications to the Plaintiff’s liberty and property rights.

4.         Whether an Order should specifically address the merits of the surreply, applying the same rationale the Fifth Circuit held when eviscerating this court in Hager v. Brinker Tex., Inc., 102 F.4th 692, 697 (5th Cir. 2024): “The district court adopted the magistrate judge’s M&R without assigning reasons, analysis, or any change, over Sharnez’s objection, in a three-sentence-long order.”

5.         Whether the Court should sua sponte (a) issue a stay, and/or (b) reject the M&R(s) if the court agrees that 1 constitutes an abuse of discretion by MJCAB, considering the Fifth Circuit’s precedential published opinion in Ga. Firefighters’ Pension Fund v. Anadarko Petroleum Corp., 99 F.4th 770, 772 (5th Cir. 2024, pub.), reversing this court for the same issue less than 9 month ago.

APPLICABLE LEGAL STANDARDS

Objections, Timeliness and Standard of Review

U.S. v. Rodriguez, Criminal No. G-04-01, Civil Action No. G-06-458, at *3 (S.D. Tex. July 31, 2006) (“Failure to file written objections to the proposed findings, conclusions and recommendations contained in this report within the allowed time SHALL bar the aggrieved party from appealing the factual findings of the Magistrate Judge that are accepted or adopted by the District Court, except upon grounds of plain error or manifest injustice.”).

Reconsideration

A motion to reconsider an interlocutory ruling is governed by Federal Rule of Civil Procedure 54(b).  Austin v. Kroger Tex., L.P., 864 F.3d 326, 336 (2017).  A district court may reconsider an order “for any reason [a court] deems sufficient,” id., “even in the absence of new evidence or an intervening change in or clarification of the substantive law,” Pfeiffer v. Ajamie PLLC, No. 4:19-cv-02760, 2020 WL 13420831, at *1 (S.D. Tex. Jan. 27, 2020).  Moreover, the “[c]lassic reasons for granting reconsideration” include that the order rests upon an erroneous factual basis.  Shih v. Blue Cross & Blue Shield of Tex. Inc., No. 4:21-CV-01530, 2022 WL 444476, at *1 (S.D. Tex. Feb. 10, 2022) (noting that reconsideration is appropriate if “the judgment is based upon a manifest error of fact or law”).

Docket Filings Should Never be Backdated

Tulley v. Ethyl Corp., 861 F.2d 120, 123 (5th Cir. 1988) (“the judgment, signed December 24, 1987, was apparently entered on the docket sheet at the district court clerk’s office on December 29, and the defendants’ notice of appeal, filed January 27, 1988, was entered on the docket sheet on January 28… The district court’s docket sheet in this case reveals that the order appealed from was not docketed until December 29, 1987, and the filing of the notice of appeal on January 27, 1988 was, therefore, within the 30-day requirement of F.R.A.P. 4(a)(1).”).

Judicial Integrity and Impartiality

Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A), Code of Conduct for United States Judges (requiring judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary”). At its core, this judicial impartiality is “the lack of bias for or against either party to the proceeding,” which “assures equal application of the law.” Repub. Party of Minn. v. White , 536 U.S. 765, 775–76, 122 S.Ct. 2528, 153 L.Ed.2d 694 (1992) (cleaned up); see also, e.g., Buntion v. Quarterman , 524 F.3d 664, 672 (5th Cir. 2008) (explaining that defendants’ “right to a fair trial” is in part “fulfilled by a judicial officer who impartially presides over the trial”) (citing Bracy v. Gramley , 520 U.S. 899, 904–05, 117 S.Ct. 1793, 138 L.Ed.2d 97 (1997) )…the court may unintentionally convey its tacit approval of the litigant’s underlying legal position. See , e.g. , United States v. Candelaria-Gonzalez , 547 F.2d 291, 297 (5th Cir. 1977) (observing that a trial judge “must make every effort to preserve the appearance of strict impartiality,” including by “exhibit[ing] neutrality in his language”). Even this appearance of bias, whether real or not, should be avoided. – United States v. Varner, 948 F.3d 250, 256 (5th Cir. 2020).

ARGUMENT

As raised in the Statement of Issues above, Plaintiff provides cases where Surreplies are granted, but ultimately the relief is denied.

See; “ELECTRONIC ORDER granting 31 Plaintiff Paul Casey Blank’s Motion for Leave to File Surreply to Defendant’s Reply in Support of its Motion for Summary Judgment.”

– Blank v. Deutsch Bank National Trust Company (3:16-cv-01463) District Court, N.D. Texas (Sep 8, 2017);

Closer to home, this court decided:

Deutsche Bank Nat’l Tr. Co. v. Saihat Corp., No. 21-20002, at *4 (5th Cir. Dec. 8, 2021)

and on appeal the Fifth Circuit stated in their opinion affirming this court’s decision;

“Saihat was permitted a sur-reply following Deutsche Bank’s reply”

– However, this statement is not accurate.

Saihat Corp., aka Nanik Bhagia, represented by sanctioned attorney Jerry L. Schutza – who has been warned several times in this federal court for filing similarly frivolous cases and sanctioned on appeal by the Fifth Circuit – did not obtain permission to file his Surreplies

(also referred to as Supplemental pleadings),

according to DBNTCO and their counsel, Mackie Wolf, including the “attorney of many hats”, Mark D. Cronenwett

(who was the appointed substitute trustee in Plaintiff’s underlying proceedings).

See; Deutsche Bank National Trust Company v. Saihat Corporation (4:19-cv-00825) District Court, S.D. Texas, ECF 44 and 50 (Saihat) and DBNTCO’s ECF 51, which states at 4.

“On March 17, 2020, without seeking leave, Defendant filed its Surreply to Plaintiff’s Reply (“Surreply”). (ECF No. 44.)”;

and at 5.,

“Defendant did not continue negotiation efforts and filed a Supplemental Response to Plaintiff’s Motion for Summary Judgment on July 12, 2020 (“Supplemental Surreply”). (ECF No. 50.)”.

This case was processed and decided directly by Judge Eskridge.

Despite failing to seek leave of this court to file, Saihat’s Surreply and Supplemental Surreply were included in the Fifth Circuit’s opinion as being granted, but ultimately the relief requested therein denied by this court and affirmed on appeal.

However, ferreting into the Saihat pleadings in this court:

DBNTCO, ECF 51, Page 4,

II. Argument and Authorities – OBJECTION TO DEFENDANT’S SURREPLIES AND ANY OTHER RESPONSE 1-4,

DBNTCO specifically request (without a separate motion) that the court should enforce its own rules by striking ECF 44 and 50.

Similarly, the Plaintiff urged the same request of PHH’s Motion for Summary Judgment [27].

It should have been stricken – and can still be stricken – sua sponte by the court, see LR11.4.

For similar deficiencies, the same fate should be afforded to PHH’s Vexatious Motion [28].

This Raises the All-Important Question

What are the court’s procedures if there’s no consistency in the application of the court’s own procedures or local rules?

In this court and specifically in these proceedings, the facts are irrefutable.

When you [Joanna Burke] follow the court procedures and rules, due process is denied, but when you play “fast and loose” [e.g. as described in ECF 60, docketed Jan. 29, 2025] with the court procedures [PHH], you’re granted all the relief requested, either by Order, and/or by failing to strike the deficient filings.

This is a manifest error of law, that is plain and indisputable, and which amounts to a complete disregard of controlling law.

PHH’s Motion Deficiencies Violate The Court’s Procedures and Local Rules

No Certificate of Word Count

Judge Eskridge’s procedures are based on word count, not pages. As filed by PHH’s veteran counsel, Motion [28] is 5,066 words, a figure Plaintiff has calculated from Microsoft Word, starting under the title of the motion and stopping at the end of the Conclusion section of PHH’s motion.

Additionally, PHH’s deficient Motion should have a Certificate of word count, but it does not.

See: Meadows v. Costco Wholesale Corp., Civil Action 4:23-cv-01536, at *1 (S.D. Tex. July 5, 2024)

(“Costco’s original motion for leave was stricken because it lacked a certificate of conference.”).

Judge Eskridge’s limit is restricted to 5,000 words per 18 c. and as stated, there is no Certificate of word count included by PHH, which is reason alone to strike PHH’s Motion.

In short, Judge Eskridge could have chosen page-limit, but he chose a word-count limit.

PHH’s Footnote Arguments and/or Evidence Should Be Disregarded

Furthermore, PHH’s motion included verbose argument in disfavored footnotes.

Judge Eskridge goes on to say at 18 d. of his court’s procedures:

“Evidence or argument raised only by footnote will be disregarded.”.

Judge Bennett’s Order Striking Oversized Motion

Now, compare MJCAB with Judge Bennett in Burke v. Ocwen Loan Servicing, LLC (4:21-cv-02591), District Court, S.D. Texas,

[OVERSIZED MOTION] STRICKEN FROM THE RECORD per Order (Doc # 40) Modified on 12/13/2021 (ledwards, 4). (Entered: 12/10/2021).

To put this in perspective, in these proceedings and specifically PHH’s Motion for Summary Judgment [27], they demanded that Plaintiff detail each cause of action with specificity.

That was a struggle based on the word count allowed per Judge Eskridge’s court procedures (5,000), when answering a motion that was one and a half times that allowance.

Ultimately, this resulted in the “how” element in the fraud claim being excluded inadvertently.

Despite this, MJCAB allowed PHH’s non-compliant and supersized motion [27] by incredulously denying as moot [55] PHH’s tardy motion [50] requesting leave to file excess words and ignoring the many other deficiencies and procedural violations, but then she turns around and immediately denies Plaintiff’s small amendment, and where Joanna Burke, acting pro se, did comply with all the court’s procedures.

MJCAB: (1) “Plaintiff presents no good cause for granting leave to file a Surreply.”

MJCAB claims ‘no good cause’ for granting leave to file a surreply, Plaintiff assumes on the premise of (2) and (3) below.

Compare this decision with her recent detailed opinion in

Tex. Tamale Co. v. Cpusa2, LLC, Civil Action 4:21-cv-3341, at *1 (S.D. Tex. June 4, 2024)

and where “Defendant’s Motion for Leave to File a Sur-Reply (ECF 76) is GRANTED.”.

While MJCAB refers to (2) and (3), there is no reasons, legal authority, or cross-reference to the “other motions” in her three sentences.

Her order is vague and conclusory.

MJCAB: (2) “The Motion rehashes arguments regarding jurisdiction addressed in other motions.”

As argued here, and in the respective M&R and “Certified Questions” motion, this statement and resulting decision based on 3-sentences is categorized by the Fifth Circuit as an abuse of discretion.

Nor is this Magistrate Judge Bryan’s or the court’s first offence in recent cases which have been remanded by the Circuit Court, as Anadarko and Hager both confirm.

MJCAB: (3) “Plaintiff also contends that PHH is asking the Court to interfere with state court proceedings, which is not accurate.”

As argued here, and in the respective M&R and “Certified Questions” motion, this statement and resulting decision based on 3-sentences is categorized by the Fifth Circuit as an abuse of discretion.

Nor is this Magistrate Judge Bryan’s or the court’s first offence in recent cases which have been remanded by the Circuit Court, as Anadarko and Hager both confirm.

DECLARATION

Pursuant to Texas Civil Practice and Remedies Code Section 132.001 and “In lieu of a sworn affidavit, a litigant may submit an unsworn declaration as evidence against summary judgment. See 28 U.S.C. §1746.”, I hereby provide my unsworn declaration. My name is Joanna … and I declare under penalty of perjury that all information herein is true and correct.

CONCLUSION

For the reasons outlined above, the Plaintiff requests that the Court reconsiders MJCAB’s Orders [in tandem with the Related Memorandum and Recommendation] and grant the relief requested herein.

To the extent this court maintains the opinion it has jurisdiction in these proceedings, Order 56 should be reversed, thus accepting Plaintiff’s pleadings, and after considering the related series of pending objections, only the District Judge can decide the next steps, including any and all other relief to which Plaintiff is entitled.

RESPECTFULLY submitted this 6th day of February, 2025.