When You Find Out Your 3-Panel at The Court of Appeals for the Fifth Circuit and it Confirms The Obvious. LIT Focuses on Panel Judge Don R. Willett

WILLETT, DON R.

SOUTHWICK, LESLIE H.

HIGGINGBOTHAM, PATRICK E.

Judge Willett’s past included a lengthy term as a Justice on the Texas Supreme Court. LIT has read about the fact he supports big business. This is standard practice, if you want to have more than one term on the bench, which was confirmed 31 years ago in a 60-minutes television documentary called Justice for Sale. In that documentary, it confirmed, there is no justice in Texas Courts.

Move forward to 2019, that status quo remains in both State and Federal Courts. Since the financial recession in 2008, not one case has been won by a homeowner pertaining to foreclosure in the Court of Appeals for the Fifth Circuit.

As a quick recap, the Burkes came to this appellate court twice with a judgment in their favor from the lower court, dismissing Deutsche Bank National Trust Company’s civil action for foreclosure. Both times this court reversed for the Bank when the evidence clearly showed, the Burkes’ were entitled to the judgment.

So now LIT will review a recently appointed Fifth Circuit Judge, namely Don Willett, who has been confirmed as a hand-selected 3-panel member for the case of Burke v. Ocwen Loan Servicing, LLC (19-20267) and prove his historical bias towards banks and non-banks and against homeowners, despite the law determining otherwise.

The Burkes loan was a HELOC loan. These “home equity” loans were so disfavored in Texas that they didn’t fancy relying just on legislation, so they incorporated the rules in the Texas Constitution, around 3,000 words (per Justice Hecht at his Federalist Society speech). The goal was to protect citizens of Texas from predatory lending.

What’s ludicrous is that Chief Justice Nathan Hecht stood up at a recent Federalist Society meeting and waxed lyrical about how this law protected consumers and their homes in Texas. Yet he, along with former Texas Supreme Court Justice and now Fifth Circuit Federal US Judge Don Willett, dissented when it came to doing just that – standing up for the people of Texas and the Texas Constitution.

The case below is a recent landmark case, and where after the Fifth Circuits’ “erie guess” in Priester was overturned by the Texas Supreme Court. It relied on Wood to do so, a case we now know, Willett dissented.

In Wood, the Court held that “no statute of limitations applies to cut off a homeowner’s right to quiet title to real property encumbered by an invalid lien” because “the constitutional protections” embodied in article XVI, section 50 “do not contemplate such a limitation.”

So what better ‘random assignment’ than a dissenting Willett to place on the Burke’s OCWEN appeal at the Fifth Circuit, where the Burkes former counsel was none other than Connie Pfeiffer of Beck Redden and who argued Wood at the Texas Supreme Court.

Pfeiffer also made it clear, the Fifth Circuit’s opinion in Deutsche II (18-20026), was wrong in law and to interpret centuries of precedent pertaining to property law the way in which this court did in the Burkes’ case with Deutsche Bank was a clear abuse of power.

Ms. Pfeiffer: “ . . . And I do want to make an important clarification, which is we don’t necessarily agree that the Fifth Circuit was correct in reversing this Court’s judgment. . . . And I will add –and Ms. Hassan Ali might want to comment on this as well – I do think the Court’s hypothetical and understanding of centuries of common law is correct, and it may just be that MERS is unique.” – Deutsche Bank v. Burke, Transcript, Doc. 126, p. 34/35. Case 4:11-cv-01658, Filed in TXSD on 02/06/17.

Extract from Burkes’ initial Brief in the Burke v. Ocwen case at the Fifth Circuit. As discussed herein, Willett dissented on following the rule of law in the Wood case. He is a biased jurist and should not be on the 3-panel.

CHIEF JUSTICE HECHT filed a dissenting opinion, in which JUSTICE GREEN and JUSTICE WILLETT joined.

CHIEF JUSTICE HECHT, joined by JUSTICE GREEN and JUSTICE WILLETT, dissenting.

The day the Woods closed their home equity loan, July 2, 2004, they could have known whether it complied with the requirements of Article XVI, Section 50 of the Texas Constitution, and had they thought it did not, they could have immediately insisted that any noncompliance be cured.

They did nothing, apparently happy to have the loan.

Eight years later, long after the original lender had parted with the note, they sued the current holder, HSBC Bank, for what are fairly characterized as technical violations of the constitutional requirements, seeking to invalidate the lien on their homestead securing the loan.

They have now abandoned all of their complaints but one—one involving at most a few hundred dollars—that respondents have not conceded.

The Court holds that the Woods could have waited as long as they liked to sue, indeed, that the Constitution itself gives them this right.

The Court’s position, injecting instability into land titles, has been rejected by the Fifth Circuit and by four Texas Courts of Appeals—every appellate court that has considered the matter. I would join them and therefore respectfully dissent.

A home equity loan that does not comply with Section 50 is invalid.

The simple question is when : when the noncompliance occurs, or after a failure to cure as allowed by Section 50? If the latter, a borrower’s complaint is subject to the residual four-year statute of limitations, running from the closing date….

Affirming summary judgment in favor of lender and concluding that “U.S. Bank’s lien was still valid at the time of the foreclosure sale”…

In this diversity case, Texas law controls the limitations issue. Under Texas law, “a lienholder must foreclose on, and sell, encumbered property no later than four years after the claim accrues.” Sexton v. Deutsche Bank Natl Tr. Co., 731 F. App’x 302, 305 (5th Cir. 2018) (per curiam) (citing TEX. CIV. PRAC. & REM. CODE § 16.035(b)).

One of Several New Precedent Property Foreclosure Laws Written into History by a Corrupt Judiciary, look at the Dates of the Cited Cases, none before the Financial Crisis of 2008.

But a lienholder can unilaterally abandon its acceleration before the statute of limitations expires. See, e.g., DeFranceschi v. Seterus, Inc., 731 F. App’x 309, 311 (5th Cir. 2018); Boren v. U.S. Nat’l Bank Ass’n, 807 F.3d 99, 105 (5th Cir. 2015); Wolf 44 S.W.3d at 566-57. And abandonment of acceleration restores the loan’s original maturity date, which means “the noteholder is no longer required to foreclose within four years from the date of acceleration.” Leonard v. Ocwen Loan Servicing, L.L.C., 616 F. App’x 677, 679 (5th Cir. 2015) (per curiam).

U.S. Bank abandoned any prior acceleration here. The Marshes contend they received a “Notice of Acceleration” on May 10, 2012. Then on May 26, 2015, U.S. Bank sent a “Default Notice” to the Marshes.

U.S. Bank triggered a new statute of limitations period when it sent a new “Notice of Acceleration” on February 27, 2017.

Which is over the 4 year limit, but the 5th relies on the new precedent where a lender can just send a new notice when it likes, ‘not asking for full repayment’ and it reactivates the future date. Poppycock!

Certainly the Rose case is supremely egregious as the Fifth Circuit take an exhaustive 9-pages to wordsmith and play with the calculator to enable compliance with the number of days allowed, asserting the foreclosure was just because it fell within the Fifth’s erroneous calculation based on erie guess and bias interpretations of the “textual” meaning, pertaining to the relevant legislation.

This opinion is where Deutsche Bank removes the State court action to the Federal court – which will rule quickly in favor of the Bank.

At LIT, we are of the very strong opinion, and one that is cemented in hundreds of years of property law, and as cited and discussed in detail in the Burkes’ briefs in the pending Ocwen case currently before the Fifth Circuit – foreclosure cases belong in State court and not Federal court.

In this case, the Courts cry foul, the usual and known move, and will assert that the homeowner intentionally attempted to enjoin people to the action to ‘avoid jurisdiction and allow for remand to the State court’. Again, wordsmithing.

The cases should never be in Federal court in the first place.

“Allan Wolf appeals the denial of his motion to remand. We find that any defendants whose presence destroys complete diversity were improperly joined. Thus, a federal court may exercise diversity jurisdiction over the suit. We AFFIRM.”

Extract from the Burkes’ initial brief in the Ocwen case pending at the Fifth Circuit;

Judge Elrod also advocates the Appellants arguments in this case; that the State Court is the right forum for cases concerning the homestead laws of Texas;

“One might argue that Hamilton’s toast to the state judiciaries was merely a calculated response to the Anti-Federalists, but it is quite revealing of popular sentiment that such a staunch defender of national power felt the need to defend state courts as “the immediate and visible guardian of life and property.”

Then, there’s the case of Leggette v Washington Mutual Bank, et al., (2005),3:03-CV-2909-D44 in NDTX Court;

“Invoking “foreclosure by private power [is] a traditional creditor’s remedy under state law.” Roberts v. Cameron-Brown Co., 556 F.2d 356, 359 (5th Cir. 1977).”

“Regulating the foreclosure of real property has traditionally been the province of states, despite federal regulation of some sectors of the lending industry, and “there are state law remedies available to protect mortgagors from unconscionable mortgages.” Id. at 361.”

and the Judge continues;

“It is improbable that Congress, having opted not to create a private right of action for violations of the NHA or regulations promulgated thereunder, would have intended to shift from state to federal courts potentially massive numbers of foreclosure-related lawsuits.”

Applying STATE CONTRACT LAW to determine whether plaintiffs could enforce arbitration agreement in this residential property lawsuit. (Confirming LIT’s views that State law usurps Federal law in relation to real estate and liens).

The Fifth Circuit affirmed the district court’s motion to compel arbitration. Determining that it had jurisdiction and the premature notice of appeal was effective, the court held that the Green Tree Parties had standing to compel arbitration even if some were not signatories to the arbitration.

In this case, the House Parties’ allegation supported application of Mississippi’s intertwined claims test to permit Green Tree and WIMC to compel arbitration as non-signatories. The court also held that the district court did not err in ruling that the parties’ express incorporation of the JAMS rules provided clear evidence that they agreed that the arbitrator would decide arbitrability.

Finally, the district court correctly referred the question of fraud to the arbitrator.

In this Texas Supreme Court case when Willett sat on the bench as a Justice, the Bank sold the property for only 65% of it’s fair market value at the TIME OF FORECLOSURE VALUATION. Willett concurred in the opinion of the court, which inexplicably allows the Bank to rely on a much lower valuation, some 15 MONTHS later and in contravention of the meaning of the legislation. Below is a dissenting opinion, in part, which explains why this is a lawless opinion.

“In this case, the trial court did not consider evidence of the necessity or amount of any discount to convert the $599,000 future sales price into the property’s fair market value on the date of the foreclosure sale.”

“Some evidence indicated that the fair market value at the time of foreclosure was substantially greater than the $539,000 that PlainsCapital paid, even as high as $825,000 or $850,000.”

“If, in fact, the property was worth a greater amount on the date of foreclosure but subsequently lost substantial value due to a decline in the market, the statute nevertheless required the court to determine the offset based on the property’s fair market value on the date of the foreclosure sale, not its value fifteen months later.”

Justice Boyd, joined by Justice Guzman, dissenting.

SUMMARY

LIT would like to remind Judge Don R. Willett of the Court of Appeals for the Fifth Circuit -he sat beside Timothy Sandefur of the Goldwater Institute at a Federalist Society meeting while he was a Supreme Court of Texas justice. The Burkes referenced Sandefur’s authored book in a motion before the court, which is titled; “The Conscience of the Constitution, The Declaration of Independence and the Right to Liberty” and which reminds this court of it’s obligations and responsibilities pertaining to the Constitution and due process in law clause, with particularity.

Returning to the Burke v. Ocwen case, the 3-panel should rule in favor of the Burkes, who are unequivocally entitled to judgment and relief in this appeal. Historically and up till the present time, however, a corrupt judiciary has prevented actual laws from being applied as they were designed. This court has historically ruled in favor of banks and nonbanks, whether they were entitled to judgment or not.

In the Burkes prior Deutsche Bank case, the straw man called Deutsche Bank was not entitled to judgment and the same applies here, judgment should be for the Burkes.

However, with Judge Willett on the panel, that likelyhood is heavily diminished and based on the data aforementioned. #RESTORETX.