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It’s going to be a live-thread article, so we’d classify it as raw and unfiltered. It will be a constant work-in-progress so check back for updates.
Request Financial Disclosure Reports for Relevant Judges and Years (Update: apparently takes 3-6 months to obtain this information)
Nice to see our toes still intact as we asked politely for an extension of time and the motion was unopposed by Ocwen and “No Opinion” from CFPB after a reminder. Maybe the watchdog government agency were smarting from their lower court proceedings being tossed and having to recover with an amended answer by the 29th of September. Will they find their ‘bark’?
Anyways, we received a wonderful filing today, the Court of Appeals for the Eleventh Circuit approving our motion for an extension of time, which will allow us to read up on all the laws and prepare a legally magnificent opening brief and argument. Hat tip to Judge Martin .
Eleventh Circuit Appeal Docket – Burke (Intervenor-Plaintiff-Appellant) v. Ocwen and CFPB, on Appeal from S.D. Fla
Appearance of Counsel Form Email to CFPB & Ocwen Counsel
Date: Oct 17, 2019, 5:12 PM
ELEVENTH CIRCUIT APPEAL #19-13015 CFPB v OCWEN
We received your forms from Ms Rose-Smith who has an accessible profile on her company website.
Our question for CFPB’s ‘Jack’. Mr Barrett are you the same person as on the RD Legal case, where your email is Bernard.Barrett@cfpb.gov, listed for one Bernard John Barrett, Jr. Senior Litigation Counsel – is this you?
Do you have several emails and pseudonym’s with CFPB?
Your earliest clarification would be appreciated as the internet has a person of similar name that was shown as a “former” employee of CFPB ;
and maybe working with;
(commodity future trading commission)
Thank you for your attention to this concern, if CFPB has a profile for its active court lawyers / snr litigation counsel, it is not very easy to find.
We cannot seem to locate you under the Open Government Website Tree Page – we believe the section where Mary McLeod is would be where your profile would be listed, but on expanding the section, it does not list you…and manual search using the website search feature yields no results.
MOTION TO STAY PROCEEDINGS
On a separate note, this question is for both of you. Are these appearance forms indicating you are both planning to submit (separate) replies to our motion to stay, submitted 13th instant and date stamped 15th by 11th ECF? Do you have a deadline?
Thanking you in advance for your cooperation in this legal matter.
Reply from Bernard or ‘Jack’ @ CFPB (OCWEN did not reply)
Date: Oct 18, 2019, 4:30 PM
Thanks for your email. I can be reached at either Bernard.Barrett@cfpb.gov or at Jack.Barrett@cfpb.gov.
I appeared for the Bureau in the action RD Legal Funding, LLC brought against the Bureau in the Southern District of New York, RD Legal Funding, LLC v. CFPB, S.D.N.Y. No. 1:17-cv-00010. I believe the parties stipulated to the dismissal of that action.
The matter currently pending in the Second Circuit Court of Appeals is an appeal from the Bureau’s enforcement action against RD Legal Funding, LLC. CFPB v. RD Legal, S.D.N.Y. No. 1:17-cv-00890.
The Bureau has not decided whether to file a pleading with respect to your pending motion.
Bernard John (Jack) Barrett, Jr.
Consumer Financial Protection Bureau
Motion to Stay LOWER Court Proceedings filed on Sunday, 7th October, 2019
History confirms the lower court has failed in its analysis of the CFPB, a self-serving decision when the Attorney General for the United States could have – and should have – been invited to help answer the question of the CFPB’s constitutionality. As a result, the Burkes need assistance from the appellate court to stop any further damaging Orders being released while their case is before this court.
Motion to Take Judicial Notice and/or Supplement the Record – filed on Sunday, 7th October, 2019
On September 19, 2019, in the case; Joanna Burke, et al v. Ocwen Loan Servicing, L.L.C., #19-20267, (5th Cir., 2019) – “FRAP Rule 44 Notice Filed”. This was sent to both State and Federal AGs. (See Exhibit #44-5TH-LET). The Burkes would respectfully ask the court to take judicial notice of this case, including the Burkes filings relative to the Rule 44 Challenge(s).
Motion to Stay Appellate Court Proceedings filed on Sunday, 13th October, Date Stamped Tues. 15th Oct.
Due to the CFPB’s constitutionality question etc, the Burkes sought to stay the case for 9 months (the expected timeline for the Supreme Court to rule on the current Selia Law case before it) or in the alternative 90 days to file the initial brief.
The Initial Brief was Filed to Ensure it Was Timely. It was due 24th October, 2019 and Filed 24th October, 2019.
“The Burkes have formally requested that both this appeal and the lower court proceedings be stayed while the US Supreme Court considers the petition of Selia Law (#19-7) which brings into question both eh Dodd-Frank Act and the CFPB. At the time of this filing the Burkes motions remain unanswered.
Friday, 25th October, 2019 – After Initial Brief Filed on 24th, the following Order was issued by Judge Beverly B. Marin (‘BBM’)
ORDER: Appellants’ motions to stay further appellate proceedings until the matter of the CFPB’s Constitutionality is answered by the U.S. Supreme Court are DENIED. Appellants’ alternative request for a stay of (90) days is GRANTED. Appellants’ brief is due January 27, 2020.
Debt collecting foreclosure #attorneys claim to represent a mortgage servicer @ocwen and trustee/bank @deutschebank and are being sued by homeowners in #Texas federal court. they are proceeding #prose and this is a response that needs to be digested… #AppellateTwitter #law pic.twitter.com/M1q1pw3b5T
— LawsInTexas (@lawsintexasusa) October 25, 2019
11th Circuit creates a split with the 9th Circuit on whether receiving an unsolicited text message in violation of the Telephone Consumer Protection Act is constitutionally enough of a concrete injury to permit a lawsuit for it under Spokeo. https://t.co/EsHrH7aW7i #N pic.twitter.com/xa3IkYgsR4
— Orin Kerr (@OrinKerr) August 29, 2019
Dear Chairman Grassley, Ranking Member Feinstein, and Committee Members:
On behalf of the hundreds of thousands of members of People For the American Way, I write to express our serious concerns about Kevin Newsom’s nomination to the U.S. Court of Appeals for the Eleventh Circuit. His record merits further examination.
Newsom is a longtime member of the Federalist Society, having joined in 1999. He has been on their executive committee on Federalism and Separation of Powers since 2007, and he was president of the organization’s Birmingham chapter from 2012-2015. Newsom’s active presence as a leader within the Federalist Society should come as no surprise, since it is one of the primary groups to which President Trump has farmed out the selection of judicial nominees.
He also became a member of the Chamber Litigation Center in 2014, pursuing the pro-corporate legal agenda of the Chamber of Commerce.
Newsom, a former attorney general of Alabama, is currently a law firm partner who represents large corporate interests in civil litigation. He also represented Alabama in an amicus brief in Caperton v. Massey Coal Company, an important case recognizing the corrupting impact of money in politics, including independent expenditures. Newsom argued that a litigant’s constitutional rights were not violated even when the judge hearing his case owed his position to the other party’s enormous, disproportionate, and unprecedented campaign spending on his behalf.
Rather than focusing on an individual’s constitutional right to a fair and unbiased judiciary, Newsom focused on the “vital principles of federalism,” as if the states would be the truly injured party if the Court found a constitutional violation. Even in the face of campaign spending clearly making it impossible to ignore the obvious appearance of corruption, Newsom argued that “constitutionalizing” recusal rules was “unnecessary,” “unwise,” and “incapable of principled application.” In an article written after the Court found a constitutional violation, Newsom called the ruling a “broadly-worded and seemingly open-ended federal constitutional sword [for litigants] to wield.”
In an era when unlimited spending on elections is having an increasingly corrosive impact on the health of our democracy, the nominee’s record in Caperton is ominous.
Newsom has also written controversial articles on his own behalf that raise additional issues meriting further investigation.
For instance, in his 2004 article “Discrimination, Retaliation, and Implied Private Rights of Action,” Newsom posited that Title IX does not provide for a private lawsuit by an individual retaliated against for exercising their Title IX rights. Fortunately, the Supreme Court subsequently disagreed.
Newsom is also deeply hostile to substantive due process, which the Supreme Court has recognized as protecting the right of women to choose an abortion and the right of same-sex couples to marry. In his 2000 article “Setting Incorporationism Straight – A Reinterpretation of the Slaughter-House Cases,” he wrote:
Most obviously and importantly, my reading would permit courts to lay aside the historically confused and semantically untenable doctrine of “substantive due process,” a doctrine that has for years visited suspicion and disrepute on the judiciary’s attempt to protect even textually specified constitutional freedoms, such as those set out in the Bill of Rights, against state interference.
He goes so far as to claim that Roe v. Wade had its genesis in Dred Scott:
Nonetheless, courts invoking substantive due process … would do well to remember that all roads lead first to Roe, then on to Lochner, and ultimately to Dred Scott.
Although lower courts are bound by Supreme Court precedent, that statement could be interpreted as a call for lower court judges to chart their own way on issues like abortion and marriage equality. If not outright defiance of precedent, he may be calling for conservative lower court judges to impose their policy preferences onto their decisions and find ways to uphold limitations on certain fundamental rights.
It is perhaps ironic that the Federalist Society, working through President Trump, has nominated someone who so casually and inaccurately hurls comparisons to Dred Scott, since then-Senator Jeff Sessions played a key role in blocking a qualified African American from consideration for this judgeship. The vacancy that Newsom would fill has been open since 2013. After years of consultation with Alabama Senators Sessions and Richard Shelby, President Obama nominated district court judge Abdul Kallon to the seat.
No African American from Alabama has ever served on the Eleventh Circuit (or its predecessor court, the Fifth Circuit, which used to include Alabama). In fact, Kallon is only the third African American in history to serve as a federal judge on any level in Alabama. And though Senators Shelby and Sessions supported Kallon’s district court nomination, they used their blue slips to block Judge Kallon from even having a hearing.
So instead of Judge Kallon, we have Kevin Newsom, a nominee who—through no fault of his own—would only perpetuate the exclusion of African American Alabamans from the federal courts that decide their rights.
We are deeply concerned about Newsom’s record of hostility to fundamental constitutional rights. His jurisprudence would shut out more than half the population from the full protections of the United States Constitution, with abortion rights and marriage equality among the rights at risk.
We hope to learn more about the nominee both during the hearing and through follow-up written questions for the record.
Executive Vice President for Policy and Program
Former Magistrate Judge Smith Talks about Sealing of Records in Texas Federal Courts
Watchdog Agency Must Stop Being Foe of Consumer Finance
Change is coming to the Consumer Financial Protection Bureau (CFPB).
Established in the wake of the financial crisis, the CFPB courted controversy from the start. As an independent agency headed by a single director who could only be dismissed for negligence or malfeasance, the bureau enjoyed an autonomy unprecedented in U.S. regulatory history.
Judge Brett Kavanaugh from the D.C. Circuit Court of Appeals wrote that “[the CFPB’s] Director enjoys more unilateral authority than any other officer […] of the U.S. Government, other than the President.”
A greater focus on competition and consumer welfare might help the bureau to resist the temptation to overregulate.
Kavanaugh was not exaggerating. Congress and the Trump administration should make the CFPB a priority of regulatory reform, so that it becomes more accountable, less activist and truly independent.
Not only is the power of the director awesome, but it has been used to partisan effect since the CFPB’s inception. The first director, Richard Cordray, set about remaking American consumer finance by slapping punitive fines on providers and broadening the CFPB’s remit to include, among others, auto dealerships.
Under his direction, the bureau introduced a rule to restrict arbitration clauses in financial contracts, an intervention that would likely have raised the cost of credit.
Cordray also championed measures to severely constrain payday lending, an expensive form of short-term borrowing that can nonetheless be a lifeline for borrowers who have run out of options.
Indeed, throughout the CFPB’s first five years of existence, Cordray made little effort to dispel the fear among financial providers that the bureau was out to get them.
This may have been Cordray’s understanding of what the CFPB ought legitimately to do. Yet, in combination with the absence of effective checks and balances, his proclivity for regulatory intervention invariably created uncertainty.
Cordray eventually resigned, and President Trump in November appointed Mick Mulvaney as interim director. Mulvaney, a Republican and long-time skeptic of the bureau, clearly relishes the chance to turn the exceptional powers granted him as director against those who conceived the CFPB.
Indeed, despite its nominal independence from Congress, the bureau is a textbook example of political capture by whomever happens to be in charge. To his credit, Mulvaney is not just busying himself with reversing Cordray’s initiatives but is also proposing ways to increase the CFPB’s accountability.
In a letter to Congress last week, Mulvaney asked lawmakers to fund the bureau through congressional appropriations rather than grants from the Federal Reserve and to make the director removable at will by the president.
These reforms would make the CFPB more akin to other executive agencies. However, Mulvaney’s proposed fixes would do little to depoliticize the agency, instead turning it into a powerful arm of temporary powers in Congress and the White House.
Consumer finance is an area particularly in need of legislative certainty, because it involves critical sources of short-term funding for households and is currently undergoing substantial disruption from online lenders and greater use of data in credit allocation.
Furthermore, the most prolific users of products regulated by the CFPB, such as short-term lenders, debt collectors and mortgage servicers, are people on low and middle incomes.
Politicization is not the CFPB’s only weak point. The bureau has devoted precious little effort to ensuring that regulation does not stand in the way of innovation and choice. Yet, as a rule, firms should be allowed to offer a range of products, and consumers should have the freedom to choose.
So, what could Congress do to ensure that balance?
To begin, Congress could turn the bureau from a single-director agency into a multi-member board, like the Securities Exchange Commission and the Fed. This would ensure representation of alternative viewpoints at all times.
The smooth transition from Democratic appointee Janet Yellen to Republican Jay Powell at the Fed last month was clearly helped by the Fed board’s collegial process of decision-making.
Additionally, Congress should consider moving the bureau from the Fed to the Federal Trade Commission. The Fed’s regulatory remit involves prudential regulation and financial stability; that is, making sure bank balance sheets can withstand losses and, if they don’t, that contagion is minimized.
The FTC’s mission, on the other hand, is to protect consumers and promote competition. The CFPB’s role better matches the FTC’s because it involves not risk minimization but protecting the financial well-being of consumers.
A greater focus on competition and consumer welfare, moreover, might help the bureau to resist the temptation to overregulate.
There is a case for abolishing the CFPB. The products and providers that the bureau regulates did not cause the crisis. Furthermore, to the extent that there is abuse, it might be better tackled by state-level agencies or other federal watchdogs.
But if the bureau remains in existence, it must be turned from foe into enabler of consumer finance.
Retirements Leave Two Vacancies for Trump to Fill on Eleventh Circuit
“I have loved every minute of my service and it is my intention to continue serving the Eleventh Circuit Court of Appeals as a Senior Judge,” Judge Stanley Marcus told President Donald Trump in a letter Thursday.
President Donald Trump now has two openings to fill on the U.S. Court of Appeals for the Eleventh Circuit.
Judge Stanley Marcus, 73, gave the president notice Thursday that he plans to take senior status. Judge Gerald Tjoflat, 89, sent a similar letter to the president in August. The president will nominate successors for both judges from Florida.
“I’m going to continue to be active as a senior judge,” Marcus said in a statement shared by a law clerk Friday from his Miami chambers. “I am deeply grateful for the opportunity I’ve had to serve on two extraordinary courts—first as a district judge in the Southern District of Florida from 1985 to 1997, and from 1997 to date on the Court of Appeals for the Eleventh Circuit. My colleagues on the Court of Appeals and on the District Court for the Southern District of Florida are a superb group of legal scholars and jurists of the highest caliber, and it is a great honor to have served with them.”
In a letter to the president dated Thursday, Stanley said, “I have been privileged to serve our country and our courts for more than 34 years, first as a United States District Judge for the Southern District of Florida from 1985 to 1997, and then as a Judge of the Court of Appeals for the Eleventh Circuit from 1997 to date. I have loved every minute of my service and it is my intention to continue serving the Eleventh Circuit Court of Appeals as a Senior Judge.”
Marcus was born in New York, educated at Queens College of the City University of New York (B.A., 1967) and Harvard Law School (J.D., 1971).
Judge Gerald B. Tjoflat
Tjoflat, the longest serving member, was born in Pittsburgh, educated at the University of Virginia, the University of Cincinnati and Duke University School of Law (LL.B., 1957).
Tjoflat notified Trump of his intentions to retire from active duty in a letter dated Aug. 12.
“Mr. President, I have been privileged to serve our country as an active United States Judge for nearly forty-nine years—from October 16, 1970 to November 20, 1975, as a Judge of the District Court for the Middle District of Florida; from November 21, 1975 to September 30, 1981, and as a Judge of the Court of Appeals for the Fifth Circuit; and from October 1, 1981 to date, as a Judge of the Court of Appeals for the Eleventh Circuit,” Tjoflat told Trump. “I have cherished every moment of this service and will continue to do so as I serve the Eleventh Circuit Court of Appeals as a senior Judge.”