Burke v Ocwen
Burke Case Documents
Case # 201882450 – 295th DISTRICT COURT
BURKE, JOANNA v OCWEN LOAN SERVICING LLC
LUPU v OCWEN, Pennsylvania
If a MERS System member sells a mortgage to a nonmember,
the mortgage must quit the MERS System by a direct
mortgage assignment to the buyer. The transfers from Loan
City to IndyMac Bank, and by it to Fannie Mae, all members,
were made on the system with MERS remaining the locally
recorded mortgage holder. But OneWest Bank is not a
member, so it received and recorded a mortgage assignment
from MERS. OneWest, in turn, sold the mortgage to Ocwen
Loan Servicing, also a non-member, by recorded assignment.
The Office of the Recorder of Deeds of Chester County,
Pennsylvania has the documents for these last transactions.
Because of the contradictory statements in the Lucas affidavit about who possesses the original note, we cannot draw the necessary inference that Ocwen possesses the original note.
Therefore, we conclude that the circuit court erred in granting
Ocwen’s motion for summary judgment, and we remand this matter to the circuit court for the sole purpose of determining the only issue still in dispute; that is,whether Ocwen possesses the original note.
Reviewing the dismissal of Butchers original complaint (2011) by Deutsche, the subsequent filing was done by Ocwen in 2014. Now there is the issue on note ownership. This looks like Deutsche “had sold the debt” otherwise why would they not be suing again – because it was either written off or was sold to Ocwen as a junk buyer?
REMOVAL FROM STATE TO SOUTHERN FEDERAL COURT
Case 4:18-cv-04544
BURKE, JOANNA v OCWEN LOAN SERVICING LLC
Submitted Responses to Doc. 19 on 3rd March with exhibits before deadline.
Pending response is RULE 8 (Failure to state a claim) DISMISSAL deadline of 21 days.
REMOVAL OBJECTION
If the party contends that removal was improper, based on any ground other than that the federal district court lacks subject matter jurisdiction, the party may move the district court to remand the case to state court within 30 days after the defendant filed the notice of removal. 28 U.S.C. § 1447.
The district court will grant the motion if it finds that removal was improper. If the district court determines that it lacks subject matter jurisdiction at any time before entry of final judgment, the district court must remand the action to the state court. 28 U.S.C. § 1447.
Ocwen company structure / CFPB Original Petition for ref.
CFPB v Ocwen
CONSUMER FINANCIAL PROTECTION BUREAU v. OCWEN FINANCIAL CORPORATION (1:13-cv-02025) District Court, District of Columbia
Emailed Transribers; Friday, 19th April 2019
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U.S. District Court
SOUTHERN DISTRICT OF TEXAS (Houston)
CIVIL DOCKET FOR CASE #: 4:18-cv-04544
| Burke et al v. Ocwen Loan Servicing, LLC Assigned to: Judge David Hittner
Cause: 28:1441 Petition for Removal – Fair Credit Reporti |
Date Filed: 12/03/2018 Date Terminated: 03/19/2019 Jury Demand: Plaintiff Nature of Suit: 220 Real Property: Foreclosure Jurisdiction: Federal Question |
| Date Filed | # | Docket Text |
|---|---|---|
| 04/16/2019 | 31 | ORDER denying 30 Motion to Reinstate.(Signed by Judge David Hittner) Parties notified.(ealexander, 4) (Entered: 04/17/2019) |
| 04/15/2019 | 30 | MOTION to Reinstate Case on Docket and Notice of Hearing by Joanna Burke, John Burke, filed. Motion Docket Date 5/6/2019. (JenniferLongoria, 1) (Entered: 04/15/2019) |
| 03/19/2019 | 29 | ORDER OF DISMISSAL. Case terminated on March 19, 2019 (Signed by Judge David Hittner) Parties notified.(ealexander, 4) (Entered: 03/20/2019) |
| 03/19/2019 | 28 | ORDER denying 26 Motion for Extension of Time.(Signed by Judge David Hittner) Parties notified.(ealexander, 4) (Entered: 03/20/2019) |
| 03/14/2019 | 27 | MOTION to Stay Proceedings by Joanna Burke, John Burke, filed. Motion Docket Date 4/4/2019. (mmarquez, 5) (Entered: 03/15/2019) |
| 03/14/2019 | 26 | MOTION for Extension of Time by Joanna Burke, John Burke, filed. Motion Docket Date 4/4/2019. (mmarquez, 5) (Entered: 03/15/2019) |
| 03/05/2019 | 25 | Plaintiff’s MOTION to Strike OCWEN Loan Servicing, LLC’s Supplemental Response TO Plaintiff’s Motion To Stay by Joanna Burke, John Burke, filed. Motion Docket Date 3/26/2019. (bmendoza, 5) (Entered: 03/06/2019) |
| 03/05/2019 | 24 | Plaintiff’s MOTION for Reconsideration Of Order For Ministerial “ABUSE OF DISCRETION” by Joanna Burke, John Burke, filed. Motion Docket Date 3/26/2019. (bmendoza, 5) (Entered: 03/06/2019) |
| 03/05/2019 | 23 | Plaintiff’s MOTION for Reconsideration Of Order Relating To “RES JUDICATA” by Joanna Burke, John Burke, filed. Motion Docket Date 3/26/2019. (bmendoza, 5) (Entered: 03/06/2019) |
| 03/05/2019 | 22 | Plaintiff’s MOTION for Clarify by Joanna Burke, John Burke, filed. Motion Docket Date 3/26/2019. (bmendoza, 5) (Entered: 03/06/2019) |
| 03/05/2019 | 21 | MOTION Plaintiff;s “MASTER MOTION” Re Oder (DOC.19) by Joanna Burke, John Burke, filed. Motion Docket Date 3/26/2019. (bmendoza, 5) (Additional attachment(s) added on 3/6/2019: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit) (bmendoza, 5). (Entered: 03/06/2019) |
| 03/01/2019 | 20 | MOTION to Substitute Service and MOTION for Extension of Time To Effect Service by Joanna Burke, John Burke, filed. (dmorales, 5) (Entered: 03/04/2019) |
| 02/22/2019 | 19 | ORDER granting in part and denying in part 5 Motion to Dismiss for Failure to State a Claim. The motion is granted as to the dismissal of the Collection Claims on the basis of res judicata. The motion is denied without prejudice as to the dismissal of the claim under RESPA for failure to state a claim; denying 7 Motion to Stay; denying 8 Motion to Remand. The Plaintiff shall file an amended complaint addressing the claim under RESPA that is compliant with Rule 8 within 21 days from the date of this Order. Failure to file an amended complaint within 21 days will result in dismissal of the Plaintiffs’ case without further notice.(Signed by Judge David Hittner) Parties notified.(ealexander, 4) (Entered: 02/25/2019) |
| 02/06/2019 | 18 | SCHEDULING ORDER. Trial Term: March/April 2020. ETT: 2 days. Jury trial. Amended Pleadings due by 3/29/2019. Joinder of Parties due by 3/29/2019 Pltf Expert Witness List due by 4/30/2019. Deft Expert Witness List due by 5/31/2019. Discovery due by 10/31/2019. Dispositive Motion Filing due by 11/29/2019. Non-Dispositive Motion Filing due by 11/29/2019. Joint Pretrial Order due by 2/28/2020.(Signed by Magistrate Judge Peter Bray) Parties notified.(jmarchand, 4) (Main Document 18 replaced on 2/6/2019) (jmarchand, 4). (Entered: 02/06/2019) |
| 02/06/2019 | 17 | Minute Entry for proceedings held before Magistrate Judge Peter Bray. SCHEDULING CONFERENCE held on 2/6/2019. Scheduling order issued. Appearances:Joanna Burke, John Burke, Mark Daniel Hopkins.(ERO:S. Shelby), filed.(jmarchand, 4) (Entered: 02/06/2019) |
| 01/31/2019 | 16 | PLAINTIFF’S MOTION FOR SEPARATE CASE & TRIAL FROM CIVIL ACTION by Joanna Burke, John Burke, filed. Motion Docket Date 2/21/2019. (bmendoza, 5) (Entered: 02/01/2019) |
| 01/31/2019 | 15 | Corrected REPLY to 14 Response , filed by Ocwen Loan Servicing, LLC. (Attachments: # 1 Exhibit A)(Hopkins, Shelley) (Entered: 01/31/2019) |
| 01/30/2019 | 13 | REPLY , filed by Ocwen Loan Servicing, LLC. (Attachments: # 1 Exhibit A)(Hopkins, Shelley)( Per Attorney filed in error) Modified on 1/30/2019 (mmapps, 4). (Entered: 01/30/2019) |
| 01/30/2019 | 14 |
RESPONSE to Case Management Plan, filed by John Burke. (jguajardo, 4) (jguajardo, 4). (Entered: 01/30/2019) |
| 01/28/2019 | 12 | SUPPLEMENT to 10 Response in Opposition to Motion by Ocwen Loan Servicing, LLC, filed. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Hopkins, Shelley) (Entered: 01/28/2019) |
| 01/25/2019 | 11 |
Opposed JOINT DISCOVERY/CASE MANAGEMENT PLAN by Ocwen Loan Servicing, LLC, filed.(Hopkins, Shelley) (Entered: 01/25/2019) |
| 01/07/2019 | 10 |
RESPONSE in Opposition to 7 MOTION to Stay, filed by Ocwen Loan Servicing, LLC. (Hopkins, Shelley) (Entered: 01/07/2019) |
| 01/04/2019 | 9 | RESPONSE in Opposition to 8 MOTION to Remand, filed by Ocwen Loan Servicing, LLC. (Hopkins, Mark) (Entered: 01/04/2019) |
| 12/27/2018 | 8 | MOTION to Remand by Joanna Burke, John Burke, filed. Motion Docket Date 1/17/2019. (SarahShelby, 4) (Entered: 01/04/2019) |
| 12/27/2018 | 7 | MOTION to Stay Proceedings by Joanna Burke, John Burke, filed. Motion Docket Date 1/17/2019. (SarahShelby, 4) (Entered: 01/04/2019) |
| 12/17/2018 | 6 | CERTIFICATE OF INTERESTED PARTIES by Joanna Burke, John Burke, filed.(dperez, 3) (Entered: 12/17/2018) |
| 12/10/2018 | 5 |
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Ocwen Loan Servicing, LLC, filed. Motion Docket Date 12/31/2018. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Proposed Order)(Hopkins, Mark) (Entered: 12/10/2018) |
| 12/04/2018 | 4 | ORDER for Initial Pretrial and Scheduling Conference and Order to Disclose Interested Persons. Initial Conference set for 2/6/2019 at 02:00 PM in Courtroom 703 before Magistrate Judge Peter Bray. (Signed by Judge David Hittner) Parties notified.(hcarradi, 4) (Entered: 12/04/2018) |
| 12/04/2018 | 3 | CERTIFICATE OF INTERESTED PARTIES by Ocwen Loan Servicing, LLC, filed.(Hopkins, Shelley) (Entered: 12/04/2018) |
| 12/04/2018 | 2 | NOTICE of Appearance by Shelley L. Hopkins on behalf of Ocwen Loan Servicing, LLC, filed. (Hopkins, Shelley) (Entered: 12/04/2018) |
| 12/03/2018 | 1 | NOTICE OF REMOVAL from 295th Judicial District Court of Harris County, case number 2018-82450 (Filing fee $ 400 receipt number 0541-21388294) filed by Ocwen Loan Servicing, LLC. (Attachments: # 1 Exhibit Index of Matters, # 2 Civil Cover Sheet, # 3Exhibit State Court File, # 4 Exhibit Docket Sheet, # 5 Exhibit List of Counsel)(Hopkins, Mark) (Entered: 12/03/2018) |
| PACER Service Center | |||
|---|---|---|---|
| Transaction Receipt | |||
| 04/17/2019 12:46:22 | |||
| PACER Login: | alsation123:5748292:0 | Client Code: | |
| Description: | Docket Report | Search Criteria: | 4:18-cv-04544 |
| Billable Pages: | 3 | Cost: | 0.30 |
APPEAL PROCESS TO FIFTH CIRCUIT
REMOVAL OBJECTION
HOPKINS ARGUMENT
As previously addressed by the Southern District, “[I]t is questionable whether Plaintiff may rely on Texas Rule of Civil Procedure 12 to challenge Defense Counsel’s authority.” Cervantes v. Ocwen Loan Servicing, LLC, 2016 WL 10951818 (S.D. Tex. 2016). This holding acknowledges the reality that a plaintiff’s attempt to force defense counsel to prove authority under Texas Rule of Civil Procedure 12 is inapposite as federal district courts follow the Federal Rules of Civil Procedure and not the Texas Rules of Civil Procedure. See e.g., Wirsche v. Bank of Am., N.A., 2013 WL 6564657, at *2 (S.D. Tex. Dec. 13, 2013).
CERVANTES DISMISSAL (NOT THE SAME EVIDENCE NOR FACTS AS BURKE)
II. PLAINTIFF’S MOTION TO SHOW AUTHORITY
Plaintiff, relying on Texas Rule of Civil Procedure 12,5 requests that the Court instruct Defense Counsel to submit proof of their authority to act on behalf of each Defendant. This request is meritless and therefore DENIED.
First, it is questionable whether Plaintiff may rely on Texas Rule of Civil Procedure 12 to challenge Defense Counsel’s authority. Wirsche v. Bank of Am., N.A., No. 7:13-CV-528, 2013 WL 6564657, at *2 (S.D. Tex. Dec. 13, 2013) (finding that plaintiff’s attempt to force defense counsel to prove authority under Texas Rule of Civil Procedure 12 was inapposite as district courts follow the Federal Rules of Civil Procedure). Second, attorneys are presumed to have authority to act on behalf of the party they claim to represent, and the Court does not find any reason to question that presumption here. Indeed, the Court notes that Plaintiff’s allegation is conclusory and appears to be frivolous as Plaintiff does not provide any valid reason for challenging the Defense Counsel’s authority.