Texas Orders Ocwen to Cease and Desist, then Settles with PayOff
The second-largest residential mortgage servicer, (headquartered in BDF territory, A...
17 January, 2018Dear
QUESTION: Would you be interested in challenging the current Interpanel laws in an Amicus Brief, which could positively impact the decisions of all future Appeals in Circuit Courts nationwide, by affording all parties greater access to justice?
18-20026 — Deutsche Bank Natl Trust Co. v. Joanna Burke, et al AMICUS BRIEF REQUEST
We are currently seeking US Supreme Court review of our case and wish to support this Petition with an Amicus Brief. We are not lawyers and need help conveying our arguments, if you agree with our understanding of current law and how it conflicts in Panel review of cases at the Fifth Circuit Court of Appeals first a foremost, but most likely would affect all Circuits nationwide. Hence we believe the Supreme Court of the United States would be very interested in our argument, if supported by Amici.
CURRENT LAW:
“No statute defines the precedential force of each panel’s decision on subsequent panels of the same circuit.”
“No panel can overrule the precedent established by any panel in the same circuit; all panels are bound by prior panel decisions in the same circuit.”
INTERPRETATION BY: Philip M. Kanan, in “The Precedential Force of Panel Law” (see this link) states the following ;
“The decisions applying the interpanel rule have not clearly articulated their legal bases. The rule is apparently based on the assumption that panels have no judicial power or jurisdiction to overrule panel precedent. This assumption, in turn, seems based on an implication that, because the courts en banc have retained the authority to overrule panel precedent, panels have no such authority. That rationale, however, is questionable because en banc courts retain a full set of judicial power, but only this one facet is denied panels.
Kannan offers several options to revise the Interpanel law, but as this was written in 1993, we are unsure if the arguments and/or the law has been changed in the intervening period.
Circuit Splits And Issues Of National Importance
What are the indicators of certworthiness that should be the focus of your petition? Supreme Court Rule 10 sets out factors that, while “neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers.” These are that (1) the decision below conflicts with decisions of one or more federal courts of appeals or state courts of last resort on an important issue of federal law; (2) the court below decided an important federal question in a way that conflicts with rulings of the Supreme Court; (3) the court below decided a question of federal law that is so important that the Supreme Court should pass upon it even absent a conflict; or (4) (a category into which very few grants fall) the court below “so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court’s supervisory power.”
In our case, the Interpanel law affected our rights in a material and negative way.
Judgment Rendered in favor of the Burkes by Lower Court
The important facts which we believe support our Petition which include the Houston Federal Court Magistrate Judges comments on his second refusal to follow Appellate instructions so that the laws were correctly interpreted and hence justice was correctly served;
“Respectfully, this court concludes that the panel decision regarding the validity of the 2011 assignment is clearly erroneous. It contradicts binding authority from the Texas Supreme Court in violation of Erie,and disregards previous Fifth Circuit decisions, in violation of the circuit’s rule of orderliness. The court further concludes that the panel opinion would work a manifest injustice to the Burkes and other Texas homeowners. Final judgment will be rendered in favor of the Burkes, together with amended findings of fact and conclusions of law consistent with this opinion.”
The Fifth Circuit Appeal Panel responded;
“Nevertheless, the magistrate judge proceeded to defy the mandate and contravene the law of the case doctrine by concluding that our prior opinion was clearly erroneous and that failure to correct the error would result in manifest injustice. He therefore rendered final judgment in favor of the Burkes for a second time. We REVERSE and RENDER judgment in favor of Deutsche Bank.” – Read Order, Sept. 2018
The Burkes Analytical Study including Findings
Auditing the Judge Assignments & Calendaring
During our two visits to the Fifth Circuit, we noted some oddities, and in particular, bias against homeowners. We conducted an audit of 12 months mortgage foreclosure cases heard in the Fifth between Nov. 2017 and Oct. 2018.
In summary, there were 42 mortgage/foreclosure cases during this time. 11 of them (26%) involved Deutsche Bank.
Per the Burkes’ 12-month audit, (Nov. 2017 – Oct. 2018) this same 3-member panel sat on the following foreclosure related cases; (i) Deutsche Bank National Trust Co -v- Burke (18-20026), (ii) Blank -v- Deutsche Bank National Trust Co, (#18-10054), and (iii) Cervantes -v- Ocwen Loan Servicing, LLC, (#16- 41569)(frivolous), all in favor of the Banks/Servicers. That’s almost a third of the Deutsche/Ocwen Cases heard by the same 3 member panel.
The FED. R. APP. P. WITH 5TH CIR. R. & IOPs – IOP relative to Judge Assignments details the scheduling and “separation of assignment of judges and calendaring of cases”.
“A multimember court must not have its guarantee of neutrality undermined, for the appearance of bias demeans the reputation and integrity not just of one jurist, butof the larger institution of which he or she is a part.” (Williams v Pennsylvania)
Judge Catharina Haynes
In our own case we have the Hon. Judge Haynes sitting in 2016 and again in 2018 for our 3 panel. Not only did she sit, she was the Panel Author. How likely is a Judge who was part of the first panel in 2016, likely to reverse her position in 2018?
See this article we found just prior to writing this email and also this draft study on Judicial Disqualification and the data analysis therein by the American Bar Association.
Judge James E Graves, Jr.
Furthermore, the Hon. Judge Graves sat on 7 mortgage foreclosure related panel cases, which included either/and/or Deutsche Bank/Ocwen, both the Bank and Mortgage Servicer named in the Burkes’ case.
He did not sit on any foreclosure cases which did not include either Deutsche Bank or Ocwen Loan Servicing during this period. In 4 of those 7 cases (57%), Warnings or similar were issued to homeowners defending their foreclosures.
Judge W. Eugene Davis
Finally, Per financial disclosures, Davis holds and/or has previously owned shares in Deutsche Bank. A panel Judge in the appeal, where Deutsche Bank is a party. A conflict of interest. (A judge who is a stockholder in a corporation is disqualified from hearing a case in which that corporation is a party –Pahl v. Whitt, 304 SW2d 250 (Tex. App. – El Paso 1957, no writ history).
Summary
With your vast legal knowledge and experience in this area of law, we are confident you could frame the legal arguments, via Amici to the US Supreme Court in our case, to allow for a change to the current Texas Appellate Courts. As it stands, they enjoy a liberal and unconstrained ability to construe the laws as they see fit. By urging the Supreme Court to rule and set a precedent, this would allow for parties in Texas, and indeed perhaps for circuits nationwide, to receive greater access to an independent appellate panel, including en banc.
If you would be so kind as to consider our request, we would be extremely humbled and thankful. If you wish to discuss this request, or have any questions, please do not hesitate to respond.
Thank you in advance.
Sincerely
Joanna and John Burke
46 Kingwood Greens Dr
Kingwood, TX, 77339
Tel: +1 (281) 812-9591
Fax: +1 (866) 705-0576
Email: kajongwe@gmail.com
