This 11th Cir. Appeal Case (19-13015) and Timeline Page Will Be Updated Frequently
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. This appeal was filed and docketed August 5th, 2019 (Case #19-13015) after intervention was denied in the lower court by Judge Kenneth Marra of S.D. Fla. Currently the Burkes’ reply brief is due 29th April, 2020. Their latest motion for a 30-day extension to allow a tardy financial disclosure report from Judge Jill Pryor, appointed to the 3-panel and refusing to recuse, despite bias and conflicts, was denied on Monday, 20th April, 2020 by Judge Charles Wilson.
November 2020. The End? No, Just the Start.
Motion for En Banc Rehearing Submitted to 11th Cir., 22 Nov. 2020. It questions why all but one rookie active judge is now eligible for a quorum.
A completely new 3-panel of Newsom, Lagoa and Grant dropped this ‘whiteout’ opinion on Monday, 2 Nov. 2020. It’s perversion, pure and simple.
How did a pro se intervention garnish such interest and maneuvering of judges at this federal circuit court? We’ll tell you. Protecting banks, lawyers and judges who are liars.
US Attorney Kansas Office Tracking LIT Articles: The Timeline
July-Sept. 2020. The Silence from Bill. Intermittently Broken with Unlawful Orders.
Letter submitted to 11th Cir. and Ranking Member of the Senate Judiciary Committee on Aug. 6, 2020. The delays acknowledging and processing the Judicial Complaint is obvious. Judge Marra is primed to dismiss the lower court action and resign. Signed, We the People.
A 2-panel ruling on reconsideration of a single order? Issued by Branch and Jordan, 22 July, 2020. A ruling on a motion, whether entered by a single judge or a panel, is not binding upon the panel to which the appeal is assigned on the merits. FRAP 27.
June 2020. The Eleventh Circuit Branch Out, CFPB Are Nonsensical and Congress Joins in the Silence.
A new judge and a single order. Did this mean Judge Jill Pryor has recused but just not answered the Burkes’ renewed motion to disqualify her? This unlawful and rules erroneous order was issued by Branch on 25 June, 2020.
Judicial complaint filed June 9, 2020. The Burkes hold Judge Marra’s assertions to be false, untruthful and for the purposes of this judicial complaint, personal and pervasive bias against these pro se elderly citizens from Texas.
May is for Motions & Briefs. All would be delayed, or never acknowledged by the 11th Circuit.
Motion to Clarify submitted 28th May, 2020, regarding a lawyer who is representing both sides of the case per the Certificate of Interested Persons (CIP), namely Tony Alexis. The Burkes request clarification if Mr. Anthony ‘Tony’ Alexis has represented CFPB in this case or the lower court proceedings, is currently skipping between both Goodwin and CFPB as “of counsel” or what the legal standing is for this gentleman.
Judicial complaint filed June 9, 2020. The Burkes hold Judge Marra’s assertions to be false, untruthful and for the purposes of this judicial complaint, personal and pervasive bias against these pro se elderly citizens from Texas.
Renewed Motion to Disqualify Judge Jill Pryor on 16th May, datestamped, 18th May, 2020. Judge Pryor’s Order to Seal the Burkes Motion to Disqualify is unlawful and unconstitutional, pure and simple. Judge Jill Pryor’s actions demand recusal.
Perjury in Florida Federal Court by Judge Marra? It is now apparent, Ocwen Altisource could not address the Burkes responses for fear of further self-incrimination. Submitted on May 15, 2020, Burkes first reply brief (rejected as the individual briefs were not allowed).
THE BEGINNING OF THE APPEAL IN 2019 FOR THOSE LOOKING TO CATCH UP OR START HERE.
To catch up with the case, read this article on LIT
The Burkes filed their appeal and they now have been assigned a case number at the Eleventh Circuit Court of Appeals, which is 19-13015-D and the Burkes have just sent our formal introduction to them after they noticed them of the appeal and asking for e-filing permission.
Request Financial Disclosure Reports for Relevant Judges and Years (Update: apparently takes 3-6 months to obtain this information)
Nice to see all toes still intact as the Burkes politely requested 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, the Burkes received a wonderful filing today, the Court of Appeals for the Eleventh Circuit approving their motion for an extension of time, which will allow them 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
Initial Research Confirmed the CFPB continually use different names, e.g. CFPB or BCFP and that their staff are also invoking this behavior. The Burkes Questioned Mr. Barrett.
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.
Monday, 18th November, 2019 – The first day of work after at least 3 of the 11th Circuit Judges were moderating @fedsoc National Lawyers Convention in Washington DC and where there was a large gathering of 5th Circuit Judges, also moderating @fedsoc.
Appellants’ “Motion to Stay Lower Court Proceedings” is DENIED.
Appellants’ “Motion to Take Judicial Notice and/or Supplement the Record” is DENIED.
Tuesday, 19th November, 2019 – As anticipated per our LIT Article here, Texas and Florida Judiciary have a hot phone line right now.
Appellants’ “Motion for Reconsideration to Stay Proceedings” is DENIED. So officially, that’s the first Circuit Split on the SELIA LAW case. ELEVENTH denies Staying CFPB V. OCWEN (Intervenor appeal) and yet SECOND and NINTH Circuits have stayed CFPB related cases.
Howdy #BarrElrod is our hashtag for #Sunday #judge Elrod of #CA5 was moderator for the @fedsoc ‘imperfect solutions for the ethical practice of law’ + she’s delighted to inform us she is comfortable with her #nonpartisan role #ethics #txlege #lawtwitter?https://t.co/yqj2gDDESt pic.twitter.com/LVNOyXAm3i
— LawsInTexas (@lawsintexasusa) November 17, 2019
Y’all turn up on the sound: Meet Fifth Circuit #judge James ‘Jim’ Ho’s #Attorney Spouse with a Resume which includes Defending MERSCORP and #DeutscheBank National Trust Co; and she got her husbands old #job at #GibsonDunn in #Dallas after his appt https://t.co/KTKbhHxAnF pic.twitter.com/1tMq0Zc4ta
— LawsInTexas (@lawsintexasusa) November 17, 2019
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
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.
Docket re Case #19-13015 Burke Appeal against OCWEN/CFPB at 11th Cir.
This docket will be memorialized into history as a tracker of one of the most outrageous and clearly mendacious decisions in Eleventh Circuit history. That’s not unusual we hear you say! True, but the fact is this appeal necessitated nearly every active judge on the panel to make a showing and there was no ‘sitting by designation’ judge in this case. That’s telling and so is the final “White Out Opinion” by the 11th Circuit’s completely new 3-panel on Nov. 2, 2020.
United States Court of Appeals for the Eleventh Circuit
DOCKET UPDATE AS AT 3rd MARCH 2020
DOCKET UPDATE AS AT 29TH JANUARY 2020
Ocwen’s Objections to Intervention
THE DISTRICT COURT CORRECTLY HELD THAT THE BURKES HAVE NOT SATISFIED THE REQUIREMENTS FOR INTERVENTION AS OF RIGHT.
A. The Burkes Have Failed To Identify a Direct, Substantial, and Legally-Protectable Interest That Will Be Impaired If They Do Not Intervene.
US Supreme Court Citation(s):
A “concrete” injury must be “de facto “; that is, it must actually exist. See Black’s Law Dictionary 479 (9th ed. 2009). When we have used the adjective “concrete,” we have meant to convey the usual meaning of the term—”real,” and not “abstract.” Webster’s Third New International Dictionary 472 (1971); Random House Dictionary of the English Language 305 (1967). Concreteness, therefore, is quite different from particularization.
Justice Clarence Thomas Concurring detailed add-on commentary clarifying private rights;
Common-law courts imposed different limitations on a plaintiff’s right to bring suit depending on the type of right the plaintiff sought to vindicate. Historically, common-law courts possessed broad power to adjudicate suits involving the alleged violation of private rights, even when plaintiffs alleged only the violation of those rights and nothing more. “Private rights” are rights “belonging to individuals, considered as individuals.” 3 W. Blackstone, Commentaries *2 (hereinafter Blackstone). “Private rights” have traditionally included rights of personal security (including security of reputation), property rights, and contract rights. See 1 id., at *130–*139; Woolhander & Nelson, Does History Defeat Standing Doctrine?, 102 Mich. L. Rev. 689, 693 (2004). In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury merely from having his personal, legal rights invaded. Thus, when one man placed his foot on another’s property, the property owner needed to show nothing more to establish a traditional case or controversy. See Entick v. Carrington, 2 Wils. K.B. 275, 291, 95 Eng. Rep. 807, 817 (1765). Many traditional remedies for private-rights causes of action—such as for trespass, infringement of intellectual property, and unjust enrichment—are not contingent on a plaintiff’s allegation of damages beyond the violation of his private legal right. See Brief for Restitution and Remedies Scholars as Amici Curiae 6–18; see also Webb v. Portland Mfg. Co., 29 F.Cas. 506, 508 (No. 17,322) (Me.1838) (stating that a legal injury “imports damage in the nature of it” (internal quotation marks omitted)).
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1551 (2016)
Response (5th Cir. cases);
Reasoning that applicant for intervention had met its burden to show inadequate representation because its interests were adverse to the parties’ interests and the Fifth Circuit has a “broad policy favoring intervention”
Stating that an interest is concrete, personalized and legally protectable if the interest is “one which the substantive law recognizes as belonging to or being owned by the applicant.”
B. Under Eleventh Circuit Law, the CFPB Is an Adequate Representative of Any Interest the Burkes Have in This Action.
C. The Burkes Have Not Met Their Burden of Establishing That Their Application To Intervene Was Timely.
THE DISTRICT COURT DID NOT CLEARLY ABUSE ITS DISCRETION WHEN IT DENIED THE BURKES PERMISSIVE INTERVENTION UNDER RULE 24(B).
A. The District Court Identified the Correct Standard, and Applied it Reasonably to this Case.
B. The Burkes Cannot Intervene to Participate in Discovery.
This includes active judges, senior judges and at the time, with Trump pushing to place as many conservative judges on the benches throughout the country, the retiring judges and Trump replacements, which include 2 former GT Law employees, Luck and Lagoa, the “Noah’s Ark” Doctrine.
Judge Peter T. Fay
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
The Greens’ lawyers requested transcripts of Ocwen CFPB case in Fla in their S.D. Tex. bankruptcy case and that was granted by Judge Isgur (bankruptcy judge) against the wishes of Ocwen who appealed to the S.D. District Court but Judge Nancy Atlas affirmed Judge Isgur’s turnover order.
Southern District of Texas (Houston)
Adversary Proceeding #: 18-03351
|Assigned to: Marvin Isgur
Lead BK Case: 12-38016
Lead BK Title: Larry Green and Edris Green
Lead BK Chapter: 13
|Date Filed: 11/25/18|
|Nature[s] of Suit:||71||Injunctive relief – reinstatement of stay|
|14||Recovery of money/property – other|
19923 Moonriver Drive
Humble, TX 77338
SSN / ITIN: xxx-xx-5633
Johnie J Patterson
19923 Moonriver Drive
Humble, TX 77338
SSN / ITIN: xxx-xx-1004
Johnie J Patterson
OCWEN LOAN SERVICIANG, LLC AS SERVICER FOR DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR MORGAN STANLEY ABS CAPITAL I INC. TRUST 2004-HE3, MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 2004-HE3
Thomas A Connop
Matthew Hogan Davis
Elizabeth Kristin Duffy
PHH Mortgage Corporation
Matthew Hogan Davis
Elizabeth Kristin Duffy
Bankruptcy Case No. 12-38016 (13) Adversary Case No. 18-3351 CIVIL ACTION NO. H-19-2690
IN RE: LARRY GREEN and EDRIS GREEN, Debtors. LARRY GREEN and EDRIS GREEN, Plaintiffs/Appellees, v. OCWEN LOAN SERVICING, LLC, Defendant/Appellant.
NANCY F. ATLAS SENIOR UNITED STATES DISTRICT JUDGE
MEMORANDUM AND ORDER
This case is before the Court on the Motion for Leave to File Interlocutory Appeal (“Motion”) [Doc. # 2] filed by Ocwen Loan Servicing, LLC (“Ocwen”), to which Debtors Larry Green and Edris Green filed a Response [Doc. # 7], and Ocwen filed a Reply [Doc. # 8]. Having reviewed the record and the governing legal authorities, the Court denies the Motion.
On March 26, 2013, United States Bankruptcy Judge Marvin Isgur entered an Order [Doc. # 67 in BR Case 12-38016] confirming the Chapter 13 Plan proposed by Debtors Larry and Edris Green. On December 27, 2017, Judge Isgur found that Debtors had completed all payments to Ocwen required under the confirmed Chapter 13 Plan as of October 31, 2017. See Order Deeming the Mortgage Current and Directing Debtor(s) to Resume Payments [Doc. # 182 in BR Case 12-38016]. Judge Isgur ordered Debtors to begin making direct payments to Ocwen in the amount of $790.66 beginning November 1, 2017. See id. Debtors received an Order of Discharge [Doc. # 186 in BR Case 12-38016] under 11 U.S.C. § 1328(a) on January 22, 2018.
On November 25, 2018, the Greens filed this Adversary Proceeding. The Greens allege that they made the required payments to Ocwen through July 6, 2018, after which Ocwen refused to accept payments and initiated foreclosure proceedings. See Complaint [Doc. # 1 in Adv. Case No. 18-3351], ¶ 18. The Greens allege that Ocwen has continued to attempt collection of amounts that were cured in the Chapter 13 Plan and has improperly initiated foreclosure proceedings. See id., ¶ 14.
In the Adversary Proceeding, the Greens requested a copy of all transcripts (“CFPB Transcripts”) of proceedings before the Consumer Financial Protection Bureau (“CFPB”) that were referenced and quoted in a complaint filed by the CFPB against Ocwen in the Southern District of Florida. See Joint Discovery/Case Management Plan [Doc. # 9 in Adv. Case No. 18-3351], p. 5. The CFPB complaint was filed in Florida on April 20, 2017, relating to a time period between 2014 and 2016. Ocwen opposed disclosure of the CFPB Transcripts, and Judge Isgur ordered briefing on the issue.
On February 27, 2019, Judge Isgur held that the CFPB Transcripts were not “Confidential Information” that was “restricted from turnover” under the applicable federal regulations because the CFPB had used the information in the complaint in the Southern District of Florida, and because the applicable regulations do not preclude Ocwen from disclosing the CFPB Transcripts pursuant to a Court order and with appropriate protective measures. See Order Overruling Objections to Turnover of Transcripts (“February Order”) [Doc. # 32 in Adv. Case No. 18-3351]. Judge Isgur provided an opportunity for the CFPB to file any objection to the turnover of the CFPB Transcripts. See id. Judge Isgur also imposed restrictions on the Greens’ use of the information in the CFPB Transcripts if they ultimately received copies, ordering that they “may not quote from or refer to information contained solely in the transcripts except (i) in a sealed motion; or (ii) as authorized in advance by order of this Court.” See id. There is nothing in the record suggesting the CFPB filed an objection to the turnover of the CFPB Transcripts.
Ocwen filed an Objection to Production of CFPB Transcripts (“Objection”) [Doc. # 35 in Adv. Case No. 18-3351]. In the Objection, Ocwen proposed additional “protective provisions” should the CFPB Transcripts be disclosed to the Greens. See id., ¶ 27.
On April 22, 2019, Judge Isgur issued an Order to Produce Transcripts (“April Order”) [Doc. # 39 in Adv. Case No. 18-3351]. Judge Isgur ordered Ocwen to produce the CFPB Transcripts only to the Greens’ attorney, who was ordered to maintain them in confidence and was precluded from making any disclosures, in pleadings or otherwise, of the information in the CFPB Transcripts. See April Order, ¶¶ 1-2.
On July 2, 2019, the Bankruptcy Court conducted a hearing on Ocwen’s request for a broad, general protective order for the CFPB Transcripts. On July 3, 2019, Judge Isgur issued an Order (“July Order”) [Doc. # 52 in Adv. Case No. 18-3351], denying Ocwen’s request for a general protective order, stating however:
If Ocwen believes [certain information concerning identified borrowers or proprietary operations processes] was disclosed in the CFPB Transcripts, it must identify the appropriate volume, page, and line numbers to the Court by July 19, 2019. The Court will then conduct an in camera review of the identified information to determine whether limited portions of the Transcripts should be protected.
July Order, p. 2.
On July 17, 2019, Ocwen filed a Notice of Appeal [Doc. # 55 in Adv. Case No. 18-3351] and the pending Motion for Leave to File Interlocutory Appeal. On July 19, 2019, Ocwen filed its Notice of Designation of Portions of Material in CFPB Transcripts Pursuant to Order [Doc. # 57 in Adv. Case No. 18-3351]. Consideration of Ocwen’s designations remains before Judge Isgur.
By Stay Order [Doc. # 63 in Adv. Case No. 18-3351], entered August 6, 2019, Judge Isgur stayed the July Order, except for the paragraph giving Ocwen an opportunity to designate portions of the CFPB Transcripts for in camera review, until August 31, 2019, “or such longer date as is imposed by the United States District Court. By Order [Doc. # 5] entered August 9, 2019, this Court extended the Stay Order until the Motion for Stay Pending Appeal is decided.
In the pending Motion, Ocwen argues that an interlocutory appeal should be authorized pursuant to 28 U.S.C. § 158(a)(3) or, alternatively, pursuant to the collateral order doctrine. The Motion has been fully briefed and is now ripe for decision.
II. APPEAL PURSUANT TO 28 U.S.C. § 158(a)(3)
Appeals of interlocutory bankruptcy court orders are allowed “with leave of the [district] court.” See 28 U.S.C. § 158(a)(3). District courts in the Fifth Circuit apply the factors listed under 28 U.S.C. § 1292(b) to determine whether to grant leave to file an interlocutory appeal. See, e.g., In re Royce Homes LP, 466 B.R. 81, 94 (S.D. Tex. 2012). The factors are: (1) there is a controlling issue of law involved; (2) the question is one where there is substantial ground for difference of opinion; and (3) an immediate appeal will “materially advance the ultimate termination of the litigation.” Nguyen v. Am. Commercial Lines L.L.C., 805 F.3d 134, 138 (5th Cir. 2015).
When deciding whether an interlocutory appeal would materially advance the litigation, the Court examines whether an immediate appeal would “(1) eliminate the need for trial, (2) eliminate complex issues so as to simplify the trial, or (3) eliminate issues to make discovery easier and less costly.” Coates v. Brazoria County, Tex., 919 F. Supp. 2d 863, 867 (S.D. Tex. 2013); Abecassis v. Wyatt, 2014 WL 5483724, *5 (S.D. Tex. Oct. 29, 2014).
In this case, Ocwen has failed to demonstrate that an immediate appeal from Judge Isgur’s orders regarding the CFPB Transcripts will materially advance the ultimate termination of the underlying adversary proceeding. Ocwen argues that an immediate appeal will make discovery easier and less costly. See Motion, p. 12. Ocwen’s argument is based on its belief that the Greens and their attorney will fail to comply with Judge Isgur’s restrictions regarding the use of the CFPB Transcripts and the information therein. There is no showing, however, that either the Greens or their attorney are inclined to violate Judge Isgur’s orders regarding prohibited uses of the information in the CFPB Transcripts. As a result, Ocwen has failed to show that the requested interlocutory appeal will materially advance the ultimate resolution of the adversary proceeding. The Motion, to the extent it is based on § 158(a)(3), is denied.
III. APPEAL PURSUANT TO COLLATERAL ORDER DOCTRINE
Ocwen also seeks leave to appeal pursuant to the collateral order doctrine, which originated with the Supreme Court’s decision in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). The Supreme Court has repeatedly stressed that the collateral order doctrine “must never be allowed to swallow the general rule that a party is entitled to a single appeal, to be deferred until final judgment has been entered.” Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009) (citing Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994); Will v. Hallock, 546 U.S. 345, 350 (2006) (“emphasizing [the collateral order doctrine’s] modest scope”)). This admonition recognizes that allowing piecemeal appeals before final judgment “undermines efficient judicial administration.” Id. “The justification for immediate appeal must therefore be sufficiently strong to overcome the usual benefits of deferring appeal until litigation concludes.” Id. at 107.
To support an appeal under the collateral order doctrine, the order “must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment.” Netsphere, Inc. v. Baron, 799 F.3d 327, 334-35 (5th Cir. 2015). In determining whether to apply the collateral order doctrine in a particular case, the Court does not “engage in an individualized jurisdictional inquiry.” Mohawk, 558 U.S. at 107 (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 473 (1978)). Instead, the Court’s focus “is on the entire category to which a claim belongs.” Id. (citing Digital Equipment, 511 U.S. at 868); see also Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 173 (5th Cir. 2009) (“instead of making these [collateral order doctrine] decisions on a case-by-case basis, we make them on a type-of-order-by-type-of-order basis”). “As long as the class of claims, taken as a whole, can be adequately vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustic[e] averted, does not provide a basis for jurisdiction” under the collateral order doctrine. Mohawk, 558 U.S. at 107 (internal quotations and citation omitted).
The “class of collaterally appealable orders must remain narrow and selective in its membership.” Id. at 113. Pretrial discovery orders are generally not within the small class of orders immediately reviewable under the collateral order doctrine. See id. at 108; Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 449 (5th Cir. 2019).
Initially, there has been no conclusive determination of the CFPB Transcripts disclosure issue. Judge Isgur has been dealing with the issue for months, and has entered three separate orders addressing whether, to what extent, and under what conditions the CFPB Transcripts must be turned over to Plaintiffs’ counsel. In the July Order, Judge Isgur gave Ocwen an opportunity to designate portions of the CFPB Transcripts to be protected from disclosure. See July Order, p. 2. Ocwen has filed its designations, and whether the designated portions of the CFPB Transcripts should be protected remains before Judge Isgur for decision. As a result, the challenged orders do not satisfy the first requirement for an immediate appeal under the collateral order doctrine.
Additionally, regarding the non-reviewability requirement, the Supreme Court’s decision in Mohawk is analogous and persuasive. In Mohawk, the Supreme Court held that disclosure orders that allegedly violate the attorney-client privilege are not immediately reviewable under the collateral order doctrine. See Mohawk, 558 U.S. at 108. In that case, as here, the party seeking to appeal argued that disclosure of the subject information would have a chilling effect on the willingness of individuals to speak freely and openly – with the individual’s attorney in Mohawk and with government agency investigators in this case. See id.; Ocwen’s Objection to Production of CFPB Transcripts [Doc. # 35 in Adv. Case No. 18-3351], p. 12. The Supreme Court in Mohawk, while recognizing the importance of the attorney-client privilege in encouraging full and frank disclosures, held that the proper focus is whether “deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders.” See Mohawk, 558 U.S. at 108. The Supreme Court noted that litigants are routinely forced to wait until final judgment “to vindicate valuable rights, including rights central to our adversarial system.” See id. at 109. The Supreme Court held that “Appellate courts can remedy the improper disclosure of privileged material in the same way they remedy a host of other erroneous evidentiary rulings.” Id. Similarly, in this case, the Court on appeal from a final judgment can review Judge Isgur’s decision regarding the discoverability of the CFPB Transcripts and, if that decision was wrong, can vacate any judgment against Ocwen that is based on the information in the transcripts.
Ocwen argues that Judge Isgur’s orders are effectively unreviewable on appeal because, before final judgment is entered, “Plaintiffs likely will have wrongfully disseminated the Transcripts to an extent that cannot be undone.” See Motion, p. 14. The Court anticipates that Judge Isgur will impose adequate safeguards to protect any confidential information in the CFPB Transcripts, and this Court expects the Greens and their counsel to comply fully with Judge Isgur’s orders. Ocwen’s subjective fears that the Greens or their counsel will violate Judge Isgur’s orders does not render those orders effectively unreviewable, and it is not a basis for an immediate appeal under the collateral order doctrine.
Ocwen cites cases in which the United States Court of Appeals for the District of Columbia has applied the collateral order doctrine to permit an immediate appeal. The Court finds those cases, and a recent Fifth Circuit case, distinguishable. In Al Odah v. United States, the D.C. Circuit permitted an immediate appeal of a district court order requiring disclosure of unredacted classified material to enemy combatants held at Guantanamo Bay, Cuba, where the disclosure was ordered without adequate findings and over the Government’s objection. See Al Odah v. United States, 559 F.3d 539, 543-44 (2009). In this case, the information in the CFPB Transcripts is not classified; indeed, it is possibly no longer “confidential information” as defined by 12 C.F.R. § 1070.2(f). Additionally, there is no indication that CFPB objects to the disclosure as described in Judge Isgur’s orders.
In United States v. Rayburn House Office Bldg., the D.C. Circuit permitted an immediate appeal from the denial of a motion seeking return of materials seized from the office of a sitting Member of Congress in violation of the Congressman’s rights under the Speech and Debate Clause. See United States v. Rayburn House Office Bldg., 497 F.3d 654, 659 (D.C. Cir. 2007). In that case, the D.C. Circuit found the fundamental guarantees of the Speech and Debate Clause support an immediate appeal under the collateral order doctrine of the class of orders allegedly violating that Clause. See id. The federal regulations applicable to disclosure of CFPB confidential information do not involve similar fundamental guarantees that impact the separation of powers within the United States government.
The Fifth Circuit recently applied the collateral order doctrine to permit an immediate appeal by a nonparty from an order allowing its confidential business documents to be filed unsealed. See Vantage Health Plan, Inc. v. Willis-Knighton Med. Ctr., 913 F.3d 443, 448 (5th Cir. 2019). In that case, the Fifth Circuit held that sealing and unsealing orders are a class of orders reviewable under the collateral order doctrine. See id. In that case, however, the order allowed a nonparty’s confidential information to be filed unsealed as part of the public record. Judge Isgur has not issued such an order in this case.
In conclusion, the CFPB Transcript Orders issued by Judge Isgur have not completely and conclusively decided the extent of disclosure or the protective safeguards under which some or all of the CFPB Transcripts will be disclosed to the Greens and their counsel. Additionally, Judge Isgur’s orders are not within that small category of orders that resolve important questions and that are effectively unreviewable on appeal from a final judgment. Consequently, the collateral order doctrine does not apply to permit an immediate appeal.
IV. CONCLUSION AND ORDER
Ocwen has failed to demonstrate that an immediate appeal from the CFPB Transcripts Orders would materially advance the ultimate termination of the underlying adversary proceeding. As a result, an interlocutory appeal pursuant to § 158(a)(3) is not warranted.
The CFPB Transcripts Orders do not conclusively determine the extent to which the Transcripts are to be turned over to the Greens’ attorney or the conditions under which disclosure is required. Additionally, the CFPB Transcripts Orders do not involve important questions that are effectively unreviewable on appeal after final judgment. Therefore, the collateral order doctrine is inapplicable, and it is hereby
ORDERED that the Motion for Leave to File Interlocutory Appeal [Doc. # 2] is DENIED. It is further
ORDERED that the Motion for Stay Pending Appeal [Doc. # 4] is DENIED AS MOOT. It is further
ORDERED that this civil action is TERMINATED.
SIGNED at Houston, Texas, this 26th day of August, 2019.
NANCY F. ATLAS
SENIOR UNITED STATES DISTRICT JUDGE
Green v. Ocwen Loan Servicing, LLC (In re Green), Bankruptcy No. 12-38016 (13), at *1 (S.D. Tex. Aug. 26, 2019)
News and Clippings (Research) re the Intervenor Appeal (11th Cir.)
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.”
Houston Texas; Law Professor Josh Blackman’s 100 Constitutional Cases (Book release Nov. 2019)
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.