Petition for Writ of Certiorari — William Paul Burch, Petitioner v. Freedom Mortgage Corporation, et al.
Supreme Court briefOct 1, 2022
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IN THE
SUPREME COURT OF THE UNITED STATES
Supreme Court, US
FILED
WILLIAM PAUL BURCH
PETITIONER
OCT - 1 2022
OFFICE OF THE Cl ppi^
V.
FREEDOM MORTGAGE CORPORATION; FEDERAL NATIONAL BANK
ASSOCIATION. SERETUS, INCORPORATED; RUSHMORE LOAN
MANAGEMENT SERVICES, L.L.C.; LOAN CARE SERVICING CENTER; JP
MORGAN CHASE BANK, N.A.,
RESPONDENT
ON PETITION FOR WRIT OF CERTIORARI TO
THE COURT OF APPEALS FOR THE FIFTH CIRCUIT
20-10651
PETITION FOR WRIT OF CERTIORARI
William Paul Burch
Pro se
5947 Waterford Drive
Grand Prairie, TX 75052
(817) 919-4853
bllburch@worldcrestauctions.com
October 1, 2022
ii
I. QUESTION(S) PRESENTED
William Paul Burch (“Burch”) filed his appeal to the circuit court on June 19, 2020,
as an appeal of the district court ruling on in forma pauperis. On May 03, 2021,
Burch began receiving compensation for an injury during the Vietnam War. Burch
reasoned as a pro-se that the honest thing to do was to notify the court of the
meager income increase and ask that the court remand the case to the district court
where he could now pay the filing fee so that the case could either be remanded to
state court where the case could be heard on the merits or be heard on the merits at
the federal district court. Instead, the circuit court dismissed the IFP and the
Motion to pay fees as frivolous. He was further warned that this type of action was
not allowed, and he must remove all his pending real estate cases.
The questions presented are:
1.
If a mortgage holder and/or a mortgage service company were to have their
lien extinguished in bankruptcy and then refuse to accept payments should
the void lien be removed, and the property returned to the debtor lien free?
2.
Should a bankruptcy court be allowed to accept a case removed late and to
give orders without permission from all parties as required in BRCP 9027
and all orders from the bankruptcy and appeals courts be reversed and the
case remanded to the state court?
3.
Should an appeals court base their decision on an unconstitutional order?
Ill
II PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE
STATEMENT
The parties to these proceedings include Plaintiff William Paul Burch; and
Defendant Select Portfolio Servicing, Inc. Pursuant to this Court’s Rule 29.6,
undersigned pro-se states that Seterus, Inc is an wholly owned subsidiary of.
NationStar Mortgage Acquisitions, LLC headquartered in Addison, Texas.
Rushmore Loan Management Services LLC with a nerve center in Irving, Texas.
From the Rushmore website, ‘We were originally set to move from our
Farmers Branch building last year, but COVID-19 foiled those plans. So
now, we get to eniov a double celebration - getting our team back together
in person and the grand opening of our new official headquarters in Irving
on April 11. WeTl have a ribbon-cutting ceremony, tours of the new facility
for our employees, and more. Stay tuned .”for more details and
invitations” This appears to mean that this case does not qualify for removal
based on diversity.
Appellees:
Freedom Mortgage Corporation
4:20-cv-364
Counsel for Appellees:
S. DAVID SMITH
sdsmith@bradley.com
Houston, Texas 77002
DAVID C. MILLER
dmiller@bradlev.com
Dallas, TX 75270
Federal National Bank Association
Mark D. Cromenwett
Philip William Danaher
Mackie WolfZientz & Mann, P.C.
14160 North Dallas Parkway,
Suite 900
iv
Dallas, Texas 75254
mcronenwett@mwzmlaw.com
pdanaher@mwzmlaw.com
Seterus, Inc.
Mark D. Cromenwett
Philip William Danaher
Mackie Wolf Zientz & Mann, P.C.
14160 North Dallas Parkway,
Suite 900
Dallas, Texas 75254
mcronenwett@mwzmlaw.com
pdanaher@mwzmlaw.com
Rushmore Loan Management Services
LLC
Crystal Gee Gibson
Barrett Daffm Frappier Turner & Engel
4004 Beltline Rd, Suite 100
Addison, TX 75001
crystalr@bdfgroup.com
Loan Care Servicing Center, LLC
Nathan F. Smith
9330 LBJ Freeway, Suite 900
Dallas, Texas 75243
Phone: (949) 252-9400
Fax: (949) 252-1032
JPMorgan Chase Bank NA
R. Kendall Yow
William Lance Lewis
Quilling, Selander, Lownds, Winslett
& Moser P.C.
2001 Bryan St, Suite 1800
Dallas, Texas 75201
llewis@qslwm.com
kyow@qslwm.com
William Burch-Pro-Se
Grand Prairie, TX
William Paul Burch
William Paul Burch (Pro-se)
5947 Waterford Drive
Grand Prairie, TX 75052
(817)919-4853
billburch@worldcrestauctions.com
Ill STATEMENT OF RELATED PROCEEDINGS
This case arises from and is related to the following proceedings in the Court of
Appeals for the Fifth Circuit.
19-11197 Burch v Freedom Mortgage Corp., Dismissed June 16, 2021
20-10498 Burch v Freedom Mortgage Corp et al, Dismissed February 2, 2021
20-10651 Burch v Freedom Mortgage Corp, Dismissed July 14, 2022
20-10709/20-10828 Burch v Areya Holder Aurzada, Dismissed July 14, 2022, $500
Sanction
20-10850 Burch v Bank of America. (SCOTUS 22-5425) $500 Sanction
20-11035 Burch v Areva Holder Aurzada. pending
20-11040 Burch v Areva Holder Aurzada. dismissed May 17, 2022, $500 Sanction
20-11057 Burch v Homeward Residential. (SCOTUS 22-5526) $500 Sanction
20-11058 Burch v Ocwen Loan Servicing Company, dismissed April 29, 2022 $500
Sanction
20-11074 Burch v America’s Servicing Company, dismissed November 12, 2021,
$100 Sanction
20-11106 Burch v Mark X. Mullin. (SCOTUS 22-5254) $500 Sanction
20-11117 Burch v Amprica’s Servicing Company, dismissed for lack of jurisdiction
20-11132 Burch v Mark X. Mullin. Dismissed July 14. 2022. $500 Sanction
20-11239 Burch v dismissed Homeward Residential, (SCOTUS 22-5428) $500
Sanction
vi
20-11240 (SCOTUS 22-5228) Burch v America’s Servicing Company. Motion to
reopen denied on April 27, 2021, $500 Sanction
21-10054 Burch v Chase Bank of Texas, N.A.. pending
20-10872 (SCOTUS 22-5157) Burch v Bank of America, N.A.. Dismissed April 19,
2022, $500 Sanction
20-11171 (SCOTUS 21-7805) Burch v Select Portfolio Servicing. Dismissed April 17,
2022, $500 Sanction
The sanctions are because Burch refuses to withdrawal his cases because he is
correct on the merits and he put forth a Motion to pay the filing fee so the case could
be heard on the merits but it was refused.
IV. TABLE OF CONTENTS
I
QUESTIONS PRESENTED
n
1. If a mortgage holder and/or a mortgage service company were to
have their lien extinguished in bankruptcy and then refuse to accept
payments should the void lien be removed, and the property
returned to the debtor lien free?
li
2. Should a bankruptcy court be allowed to accept a case removed
late and to give orders without permission from all parties as
required in BRCP 9027 and all orders from the bankruptcy and
appeals courts be reversed and the case remanded to the state
court?
u
VII
3. Should an appeals court base their decision on an
unconstitutional order?
II
11
PARTIES TO THE PROCEEDING AND CORPORATE
DISCLOSURE STATEMENT
111
III
STATEMENT OF RELATED PROCEEDINGS
v
IV
TABLE OF CONTENTS
vi
V
TABLE OF APPENDIX
Vlll
VI
TABLE OF AUTHORITIES
x
CASES
x
CONSTITUTIONAL PROVISIONS
xu
STATUTES AND RULES
Xll
OTHER
Xlll
VII
PETITION FOR WRIT OF CERTIORARI
1
VIII
OPINIONS
1
IX
JURISDICTION
1
X
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
2
XI
STATEMENT OF THE CASE
9
JURY TRIALS
19
TIME FOR REMOVAL
21
DIVERSITY.
22
REASONS FOR GRANTING THE PETITION
27
QUESTION 1
29
XII
VIII
XIII
QUESTION 2
30
QUESTION 3
31
STATEMENT OF JURISPRUDENTIAL IMPORTANCE
34
CONCLUSION
34
V. TABLE OF APPENDIX
APPENDIX
ITEM
A
United States Court of Appeals for the Fifth Circuit
Denial of Re-Hearing, Filed July 14, 2022
B
App C,16
United States Bankruptcy Court for the Northern
District of Texas Order Filed February 28, 2020
E
App B,l,27
United States District Court for the Northern
District of Texas Order, Filed November 2, 2020
D
App A, 1,27
United States Court of Appeals for the Fifth Circuit
Opinion, Filed June 13, 2022,
C
PAGE(S)
App D,l,19
United States District Court for the Northern
District of Texas Dismissing Burch Motion for
rehearing filed August 29, 2019
F
App E,16
United States District Court for the Northern
District of Texas Accepting Magistrate Court
Findings filed July 10, 2019
App F,16
IX
G
United States Magistrate Court for the Northern
District of Texas Findings of fact and conclusions
Filed July 2, 2019
App G,l,16
H
First Bankruptcy Plan
App H.10,11
I
Freedom replacement loan document
App I, 10
J
TBCC 3.501
App J,7,12,29
K
11 U.S. Code §1141
App K,8,11,12
L
Texas Business and Commerce Code 26
App L,7,12,29
M
Statement of Inability to Afford Payment of Court
Costs or an Appeals Bond
App M,13
N
Erie Doctrine
App N,13,16
O
Notice of service
App 0,13,22
P
28U.S.C. § 1446
P,8,13,16, 22, 30
Q
Local Miscellaneous Order 33
App Q,14,16,28,30
R
FRBP 9027
App R,ii,3,16,30,31
S
28 U.S. Code § 157
App S,8,17,19,20
T
Second Bankruptcy
App T,12,19
U
FRBP 8009
App U,3,19
V
28U.SC. § 1332
App V,8,22
W
U. S. Constitution Fourteenth Amendment
App W,3,26
X
28 U.S.C. § 1915
App X,9,32
X
VI. TABLE OF AUTHORITIES
CASES
PAGE(S)
Adkins v. E. I. DuPont de Nemours & Co., 335 U. S. 331, 342 (1948)..............
26,32
Ahern Enterprises, Inc............................................................................................
11
Akhlaghi v. Berry, 294 F.Supp.2d 1238 (D. Kan. 2003)...................................
17
Am. Motorists Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979) 23
Anders v. California, 386 U. S. 738 (1967.............................................................
26,32
ARCO Envtl. Remediation, LLC v. Dep't of Health and Envtl. Quality, 213
F.3d 1108, 1113 (9th Cir. 2000).............................................................................
18
Auffant v. Paine, Webber, Jackson & Curtis, Inc., 538 F.Supp. 120, 1202
(D.P.R. 1982)..............................................................................................................
25
Bums v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1 st Cir. 1994).......................
24
Calif, ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 839 (9th Cir. 2004).
14
Campbell v. Wilder, 487 SW 3d 146.152 - Tex: Supreme Court 2016,.........
13,26
Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987)...................................
15,16
Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369-70 (4th Cir.
2001).............................................................................................................................
15
Coppedge V. United States, 369 U.S. 438 .444-445 (1962).............................
25,32
Denton v. Hernandez, 504 US 25.31 - Supreme Court 1992,
26
Elixir Indus., Inc. v. City Bank & Trust Co._507 F.3d 817 (5th Cir. 2007),..
11
Elliott v. Lessee of Piersol, 26 U.S. 328 (1828)...................................................
17
Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1395 (9th Cir.1988)
15
Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 subjects of this
Motion. S.Ct. 410, 411-12, 57 L.Ed. 716 (1913))....................................................
15
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for
Southern Cal., 463 U. S. 1, 14 (1983).....................................................................
16,20
Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936)...................
14,16
Harris v. Provident Life & Acc. Ins. Co., 26 F.3d 930, 933-34 (9th Cir. 1994):
15
xi
Harvey v. Grey Wolf Drilling Co.f 542 F.3d 1077, 1080 (5th Cir. 2008).....
23,24
Howery, 243 F.3d at 919..........................................................................................
23,24
Inge v Cain, 65 Tex. 80 (1885);
29
Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 subjects of this
Motion. S.Ct. 410, 411-12, 57 L.Ed. 716 (1913)).................................................
18
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern
Cal., 463 U. S. 1, 14 (1983))..........................................................................................
16
Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149, 152 (1908)............
16
Merrell Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, 92 L. Ed. 2d 650,
106 S. Ct. 3229 (1986)................................................................................................
15
Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63 (1987).........................
16
National Union Fire Ins. Co. v. Liberty Mut. Ins. Co., 878 F.Supp.199 (D.
Ala. 1995).....................................................................................................................
18
Neitzke v. Williams, 490 US 319.325 - Supreme Court 1989............................
26,27
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937))............................
21
Pan American Petro. Corp. v. Superior Court, 366 U.S. 656, 662-63, 81 S.Ct.
1303, 1307-08, 6 L.Ed.2d 584 (1961)......................................................................
15
Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447 (1830).......................................... .
21
Penrod, 50 F.3d at 463.............................................................................................
12
Rains v. Criterion Systems, Inc., 80 F.3d 339, 344 (9th Cir. 1996),................
15
Ren-Dan Farms, Inc. v. Monsanto Co., 952 F.Supp. 370 (D. La. 1997)...........
18
Reynolds v. Volunteer State Life Inx. Co. Tex. Cov. App. 80 S. W. 2d 1087,
1092................................................................................................................................
18
Rivet v. Regions Bank of La., 522 US 470.474-475 - Supreme Court 1998..
15,19,20
Ross v. Bernhard, 396 U.S. 531, 533 (1970)......................................................
21
Tex. Land & Loan Co., 13 S.W. at 13.....................................................................
29
Thompson v. Fritsch, , 966 F.Supp. 543 (D. Mich.1997).................................
18
United States v. Corrick, 298 US 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263
(1936))..........................................................................................................................
24
xii
22
Wright v Ford Motor Company, 508 F 3d 263, 269 (5th Cir. 2007)
CONSTITUTIONAL PROVISIONS
PAGE(S)
Texas Constitution, Article 1, Section 13....
2,26,27,29
Texas Constitution, Article 1, Section 19....
2,26,27,29
U.S. Constitution, First Amendment...........
2.27.32.33
U.S. Constitution, Fifth Amendment..........
2.18.19.25.27.31.32.33
U.S. Constitution, Seventh Amendment.....
3,15,20,21,28
U.S. Constitution, Fourteenth Amendment
App Y,25
STATUTES AND RULES
PAGE(S)
FRAP 12.1
3,24,33
FRBP 8009
App U,3,19
FRBP 9027.....
App R,ii,3,16,30,31
FRCP 12(b)(6).
3,14,17,19
FRCP 38(b)....
4,20
FRCP 59..........
4,18
FRCP 60..........
5,18
FRCP 62.1
6,24,25,33,34
Local Miscellaneous Order 33
App Q,7,16,28,30
TBCC 3.501........
App J,7,12,29
TBCC 26.02........
App L,7,12,29
TRCP 103............
7,21
TRCP 106...........
7,13,21,22
11U.S.C. §1141.
App K,8,11,12
11a U.S.C§ 9015
8,20
28 U.S.C. §157...
App T,8,19,20
28U.S.C. § 1254.
1,8
28 U.SC. § 1332..
App V,8,22
xiii
28U.S.C.§ 1446
App P,8,13,16,22,23,30
28 U.S.C.§ 1447
9,18,24
28 U.S.C.§ 1915
App X,9,20,25,32
OTHER
PAGE(S
2 R. Rotunda, J. Nowak & J. Young Treatise on Constitutional
Law: Substance and Procedure § 17.8, at 257 n.12 (3d ed. 1986)
21
Erie Doctrine
App N,13,16
1
VII. PETITION FOR WRIT OF CERTIORARI
William Burch, a resident of Grand Prairie, Texas as a pro-se litigant respectfully
petitions this court for a writ of certiorari to review the judgment of the Fifth
Circuit Court of Appeals. This petition is filed under SCOTUS Rule
VIII. OPINIONS
The opinion of the United States Court of Appeals/highest state court to
review the case appears at App. B in the appendix to this petition and is
unpublished].
The opinion of the United States Bankruptcy Court for the Northern District
of Texas appears at App. D and is unpublished.
The findings of fact and conclusions of the United States Magistrate Court for
the Northern District of Texas appears at App. G and is unpublished.
IX. JURISDICTION.
A timely petition for rehearing was denied by the United States Court of
Appeals on July 14 ,2022, and a copy of the order denying rehearing appears at
Appendix A. The jurisdiction of this Court is invoked under 28 U. S. C. $ 1254(1).
2
X. CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
Tex. Const. Article 1 Sec 13 provides:
EXCESSIVE BAIL OR FINES; CRUEL OR UNUSUAL PUNISHMENT;
OPEN COURTS; REMEDY BY DUE COURSE OF LAW. Excessive bail shall
not be required, nor excessive fines imposed, nor cruel or unusual
punishment inflicted. All courts shall be open, and every person for an injury
done him, in his lands, goods, person or reputation, shall have remedy by due
course of law. (Feb. 15, 1876.)
Tex. Const. Article 1 Sec 19 provides:
DEPRIVATION OF LIFE, LIBERTY, PROPERTY, ETC. BY DUE COURSE
OF LAW. No citizen of this State shall be deprived of life, liberty, property,
privileges or immunities, or in any manner disfranchised, except by the due
course of the law of the land. (Feb. 15, 1876.)
U.S. Const, amend. 1 provides:
Congress shall make no law respecting an establishment of religion or
prohibiting the free exercise thereof; or abridging the freedom of speech, or of
the press; or the right of the people peaceably to assemble, and to petition the
government for a redress of grievances.
U.S. Const, amend. 5 provides:
No person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases
arising in the land or naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be subject for the same
offence to be twice put in jeopardy of life or limb; nor shall be compelled in
any criminal case to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall private property be
taken for public use, without just compensation.
U.S. Const, amend. 7 provides:
3
In suits at common law, where the value in controversy shall exceed twenty
dollars, the right of trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any court of the United States, than
according to the rules of the common law.
U.S. Const, amend. 14 Appendix W
FRAP 12.1 provides:
Remand After an Indicative Ruling by the District Court on a Motion for
Relief That Is Barred by a Pending Appeal
(a) Notice to the Court of Appeals. If a timely motion is made in the district
court for relief that it lacks authority to grant because of an appeal that has
been docketed and is pending, the movant must promptly notify the circuit
clerk if the district court states either that it would grant the motion or that
the motion raises a substantial issue.
(b) Remand After an Indicative Ruling. If the district court states that it
would grant the motion or that the motion raises a substantial issue, the
court of appeals may remand for further proceedings but retains jurisdiction
unless it expressly dismisses the appeal. If the court of appeals remands but
retains jurisdiction, the parties must promptly notify the circuit clerk when
the district court has decided the motion on remand.
FRBP 8009 Appendix U
FRBP 9027 Appendix R
FRCP Rule 12(b)(6). provides:
Every defense to a claim for relief in any pleading must be asserted in the
responsive pleading if one is required. But a party may assert the following
defenses by motion: (6) failure to state a claim upon which relief can be
granted; A motion asserting any of these defenses must be made before
pleading if a responsive pleading is allowed. If a pleading sets out a claim for
relief that does not require a responsive pleading, an opposing party may
assert at trial any defense to that claim. No defense or objection is waived by
4
joining it with one or more other defenses or objections in a responsive
pleading or in a motion.
FRCP 38 provides:
(a) Right Preserved. The right of trial by jury as declared by the Seventh
Amendment to the Constitution—or as provided by a federal statute—is
preserved to the parties inviolate.
(b) DEMAND. On any issue triable of right by a jury, a party may demand a
jury trial by:
(1) serving the other parties with a written demand—which may be
included in a pleading—no later than 14 days after the last pleading
directed to the issue is served; and
(2) filing the demand in accordance with Rule 5(d).
(c) SPECIFYING Issues. In its demand, a party may specify the issues that it
wishes to have tried by a jury; otherwise, it is considered to have demanded a
jury trial on all the issues so triable. If the party has demanded a jury trial
on only some issues, any other party may—within 14 days after being served
with the demand or within a shorter time ordered by the court—serve a
demand for a jury trial on any other or all factual issues triable by jury.
(d) Waiver; WITHDRAWAL. A party waives a jury trial unless its demand is
properly served and filed. A proper demand may be withdrawn only if the
parties consent.
(e) Admiralty and Maritime Claims. These rules do not create a right to a
jury trial on issues in a claim that is an admiralty or maritime claim
under Rule 9(h).
FRCP 59
(a) In General.
(1) Grounds for New Trial. The court may, on motion, grant a new trial
on all or some of the issues—and to any party—as follows:
(A) after a jury trial, for any reason for which a new trial has
heretofore been granted in an action at law in federal court; or
(B) after a nonjury trial, for any reason for which a rehearing
has heretofore been granted in a suit in equity in federal court.
5
(2) Further Action After a Nonjury Trial. After a nonjury trial, the
court may, on motion for a new trial, open the judgment if one has
been entered, take additional testimony, amend findings of fact and
conclusions of law or make new ones, and direct the entry of a new
judgment.
(b) Time to File a Motion for a New Trial. A motion for a new trial must be
filed no later than 28 days after the entry of judgment.
(c) Time to Serve Affidavits. When a motion for a new trial is based on
affidavits, they must be filed with the motion. The opposing party has 14
days after being served to file opposing affidavits. The court may permit reply
affidavits.
(d) New Trial on the Court's Initiative or for Reasons Not in the Motion. No
later than 28 days after the entry of judgment, the court, on its own, may
order a new trial for any reason that would justify granting one on a party’s
motion. After giving the parties notice and an opportunity to be heard, the
court may grant a timely motion for a new trial for a reason not stated in the
motion. In either event, the court must specify the reasons in its order.
(e) Motion to Alter or Amend a Judgment. A motion to alter or amend a
judgment must be filed no later than 28 days after the entry of the judgment.
FRCP 60
(a) Corrections Based on Clerical Mistakes, Oversights and Omissions. The
court may correct a clerical mistake or a mistake arising from oversight or
omission whenever one is found in a judgment, order, or other part of the
record. The court may do so on motion or on its own, with or without notice.
But after an appeal has been docketed in the appellate court and while it is
pending, such a mistake may be corrected only with the appellate court's
leave.
(b) Grounds for Relief from a Final Judgment, Order, or Proceeding. On
motion and just terms, the court may relieve a party or its legal
representative from a final judgment, order, or proceeding for the following
reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not
have been discovered in time to move for a new trial under Rule 59(b);
6
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged; it is based
on an earlier judgment that has been reversed or vacated; or applying
it prospectively is no longer equitable; or
(6) any other reason that justifies relief.
(c) Timing and Effect of the Motion.
(1) Timing. A motion under Rule 60(b) must be made within a
reasonable time—and for reasons (1), (2), and (3) no more than a year
after the entry of the judgment or order or the date of the proceeding.
(2) Effect on Finality. The motion does not affect the judgment's
finality or suspend its operation.
(d) Other Powers to Grant Relief. This rule does not limit a court's power to:
(1) entertain an independent action to relieve a party from a judgment,
order, or proceeding;
(2) grant relief under 28 U.S.C. §1655 to a defendant who was not
personally notified of the action; or
(3) set aside a judgment for fraud on the court.
(e) Bills and Writs Abolished. The following are abolished: bills of review,
bills in the nature of bills of review, and writs of coram nobis, coram vobis,
and audita querela.
FRCP 62.1 provides:
Indicative Ruling on a Motion for Relief That is Barred by a Pending Appeal
(a) Relief Pending Appeal. If a timely motion is made for relief that the court
lacks authority to grant because of an appeal that has been docketed and is
pending, the court may:
(1) defer considering the motion;
(2) deny the motion; or
(3) state either that it would grant the motion if the court of appeals remands
for that purpose or that the motion raises a substantial issue.
7
(b) Notice to the Court of Appeals. The movant must promptly notify the
circuit clerk under Federal Rule of Appellate Procedure 12.1 if the district
court states that it would grant the motion or that the motion raises a
substantial issue.
(c) Remand. The district court may decide the motion if the court of appeals
remands for that purpose
Local Miscellaneous Order 33 Appendix Q
TBCC 3.501 Appendix J
TBCC 26 Appendix L
TRCP 103 Provides:
Process including citation and other notices, writs, orders, and other papers
issued by the court may be served anywhere by
(1) any sheriff or constable or other person authorized by law,
(2) any person authorized by law or by written order of the court who is not
less than eighteen years of age, or
(3) any person certified under order of the Supreme Court. Service by
registered or certified mail and citation by publication must, if requested, be
made by the clerk of the court in which the case is pending.
But no person who is a party to or interested in the outcome of a suit may
serve any process in that suit, and, unless otherwise authorized by a written
court order, only a sheriff or constable may serve a citation in an action of
forcible entry and detainer, a writ that requires the actual taking of
possession of a person, property or thing, or process requiring that an
enforcement action be physically enforced by the person delivery the process.
The order authorizing a person to serve process may be made without written
motion and no fee may be imposed for issuance of such order.
TRCP 106 Provides
METHOD OF SERVICE (a) Unless the citation or court order otherwise directs, the
citation must be served by: (1) delivering to the defendant, in person, a copy of the
citation, showing the delivery date, and of the petition; or (2) mailing to the
defendant by registered or certified mail, return receipt requested, a copy of the
citation and of the petition, (b) Upon motion supported by a statement-sworn to
before a notary or made under penalty of perjury-listing any location where the
8
defendant can probably be found and stating specifically the facts showing that
service has been attempted under (a)(1) or (a)(2) at the Page 57 location named in
the statement but has not been successful, the court may authorize service: (1) by
leaving a copy of the citation and of the petition with anyone older than sixteen at
the location specified in the statement; or (2) in any other manner, including
electronically by social media, email, or other technology, that the statement or
other evidence shows will be reasonably effective to give the defendant notice of the
suit.
11 U.S.C. § 1141 Appendix K
11a U.S.C § 9015 provides:
(a) Applicability of Certain Federal Rules of Civil Procedure
Rules 38, 39, and 47-51 F.R.C. P., and Rule 81(c) F.R.C.P. insofar as it
applies to jury trials, apply in cases and proceedings, except that a demand
made pursuant to Rule 38(b) F.R.C.P. shall be filed in accordance with Rule
5005.
(b) Consent To Have Trial Conducted by Bankruptcy Judge
If the right to a jury trial applies, a timely demand has been filed pursuant to
Rule 38(b) F.R.C.P., and the bankruptcy judge has been specially designated
to conduct the jury trial, the parties may consent to have a jury trial
conducted by a bankruptcy judge under 28 U.S.C. §157(e) by jointly or
separately filing a statement of consent within any applicable time limits
specified by local rule.
28 U.S.C. § 157 Appendix S
28 U.S.C. § 1254 provides:
Cases in the courts of appeals may be reviewed by the Supreme Court by the
following methods:
(1)By writ of certiorari granted upon the petition of any party to any civil or
criminal case, before or after rendition of judgment or decree;
(2)By certification at any time by a court of appeals of any question of law in
any civil or criminal case as to which instructions are desired, and upon such
certification the Supreme Court may give binding instructions or require the
entire record to be sent up for decision of the entire matter in controversy.
28 U.SC. § 1332 Appendix V
9
28 U.S.C. § 1446 Appendix P
28 U.S.C. § 1447 provides:
(a)In any case removed from a State court, the district court may issue all
necessary orders and process to bring before it all proper parties whether
served by process issued by the State court or otherwise.
(b)It may require the removing party to file with its clerk copies of all records
and proceedings in such State court or may cause the same to be brought
before it by writ of certiorari issued to such State court.
(c)A motion to remand the case on the basis of any defect other than lack of
subject matter jurisdiction must be made within 30 days after the filing of the
notice of removal under section 1446(a). If at any time before final judgment
it appears that the district court lacks subject matter jurisdiction, the case
shall be remanded. An order remanding the case may require payment of just
costs and any actual expenses, including attorney fees, incurred as a result of
the removal. A certified copy of the order of remand shall be mailed by the
clerk to the clerk of the State court. The State court may thereupon proceed
with such case.
(d)An order remanding a case to the State court from which it was removed is
not reviewable on appeal or otherwise, except that an order remanding a case
to the State court from which it was removed pursuant to section 1442 or
1443 of this title shall be reviewable by appeal or otherwise.
(e)If after removal the plaintiff seeks to join additional defendants whose
joinder would destroy subject matter jurisdiction, the court may deny joinder,
or permit joinder and remand the action to the State court.
28 U.S.C. § 1915 Appendix X
XI. STATEMENT OF THE CASE
This case is a perfect example of what is wrong with our bankruptcy system in
the United States today. It is not necessarily a problem with the laws but with the
way the laws are being implemented and interpreted. In fact, rulings are supposed to
be based on the plain meaning of the law and not an interpretation of the law.
10
. The property for this case is located at 203 Hemlock: Arlington, Texas. The
property was purchased with a cash payment to HUD on November 20, 2006. The
Petitioner, William Paul Burch (Burch), and his spouse got a business loan on
December 4, 2006, using the real estate as collateral. The loan was through Freedom
Mortgage Corporation (Freedom) with JPMorgan Chase Bank NA (Chase) servicing.
During the 2008 “Great Recession”, Burch owned twenty-two properties. Burch
was notified by one lender (AH Mortgage Acquisitions) that his loan was “under
water” and Burch needed to pay the difference or file for bankruptcy. Because the
amount needed to correct the twenty-two properties exceeded $600,000 Burch filed
for chapter 11 bankruptcy. Burch was not behind on any payments. (Appendix H)
The Promissory notes were voided and terms for the new notes were agreed to.
Because Burch was in the business of flipping houses, he needed the new note fast so
he could continue his business model. Each sale of a house brought Burch $40,000 to
$80,000 plus rental income for a year. The mortgage companies wanted to wait a year
to issue the new notes so they could collect on the Private Mortgage Insurance (PMI).
The cost of waiting to Burch on twenty-two properties would have been over $880,000
per year. It was finally agreed for six months to get Burch the new loans. Burch made
his payments, but Chase returned the payments, not recognizing the bankruptcy plan
Chase negotiated even though Burch included the information with his payment.
In the first bankruptcy plan on page 13. paragraph 5.8 (Appendix H)
it is written, “Based upon the Debtors’ current value of the Hemlock property, the
Debtors will enter into a New Hemlock Note in the original principal amount of
11
$84,950 (“New Hemlock Note”). The New Hemlock Note shall bear interest at the
rate of 5.25% per annum. The Debtors shall pay the New Hemlock Note in 360
equal monthly payments of $469.65 commencing on the Effective Date.”
What this clearly means is that Burch was to enter into a new Promissory
Note. If confused, the court should go to the preceding paragraph (5.7) (Appendix
H) where the plan reads regarding the Burch homestead, “Aurora is also the
lienholder on the Debtors present home at 5947 Waterford, Grand Prairie, Texas
(the “Waterford Property”). The Debtors shall retain the Waterford Property as
their homestead and continue to make monthly payments in accordance with the
terms of the existing loan documents. The Debtor’s shall pay any pre-petition
arrearage on the property prior to the Effective Date. The payments to Aurora shall
be principal and interest only on the Waterford property. The Debtors shall be
responsible for maintaining and directly paying for adequate continuous insurance
coverage on the Waterford property and directly paying all property taxes.”
This meant a new loan was needed for the Hemlock property. As defined by
the Fifth Circuit in Elixir Indus.. Inc. v. City Bank & Trust Co. (In re Ahern
Enterprises. Inc,). 507 F.3d 817 (5th Cir. 2007), the Fifth Circuit held that four
conditions must be met for a lien to be voided under 11 U.S. Code $ 1141(c); (i)
(Appendix K) the plan must be confirmed (done); (ii) the collateral must be dealt
with by the plan (done); (iii) the lien holder must participate in the reorganization
(done); and (iv) the lien must not be preserved under the plan (done);. Other courts
have similarly required secured creditor participation in the case as a condition to
12
lien extinguishment under section 1141(c). (Appendix K) See, e.g.
>
>
>
>
j
>
>
>
5
>
This case met all the criteria for the lien to be extinguished.
With the lien extinguished the Texas Business and Commerce Code 26
“Statute of Frauds” (TBCC 26.02) (Appendix L) comes into play, requiring:
“PROMISE OR AGREEMENT MUST BE IN WRITING.”
(a) A promise or agreement described in Subsection (b) of this section is not
enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by
someone lawfully authorized to sign for him.
Burch has agreed to give the lenders dix months to give him a new note.
Freedom did send a new note to Burch (Appendix I) but never completed the
transaction. It appears that Freedom collected on the PMI from Federal National
Bank Association and left it to them to send a new note. Burch sent a presentment
letter to Chase as required in TBCC 3.501 (Appendix J) notice that the note was
not valid, and the lien must be removed. Seterus, a subsidiary of a Texas Company.
Nationstar Mortgage Inc. servicing the loan took over servicing the loan. Rushmore,
LLC, with a Texas nerve center, took over the servicing of the loan from Seterus.
Because another mortgage company (NationStar Mortgage Acquisitions)
refused to follow the plan regarding Burch’s homestead after merging with Aurora
Bank, Burch, under advice of his attorney, filed for bankruptcy again. (Appendix U)
There was no mortgage on the property at the time of the second bankruptcy. The
13
reason the property was included in the second bankruptcy was that the lien had not
been removed even though the lien was void. In the second bankruptcy there is
nowhere that a continuation of the note was to take place. Actually, in Texas law
what is void is forever void and cannot be resurrected even with the agreement of
both parties.
After the bankruptcy was discharged, Burch filed a lawsuit in the Tarrant
County, Texas courthouse on November 16, 2018. The lawsuit was accompanied by
the Statement of Inability to Afford Payment of Court Costs or an Appeals
Bond. (Appendix M). Defendants were served on November 26, 2018, under
Texas Rules of Civil Procedure (TRCP) 106(a)(2)). None of the defendants filed
an objection to the Texas equivalent to the federal in forma pauperis motion. In
Campbell v. Wilder. 487. SW 3d 146.152 - Tex: Supreme Court 2016* the Texas
Supreme Court ruled, “It is an abuse of discretion for any judge to order costs in
spite of an uncontested affidavit of indigence.”
They removed the case to Federal Bankruptcy Court thirty-two days later.
(Appendix O) Friday, December 28, 2018. 28 U.S.C. $ 1446(a). (Appendix P)
Defendant Freedom Mortgage claimed in their Motion to remove that they were
served on December 4, 2018, but the court documents show this is a false statement.
Additionally, by having at least one Texas company the removal does not meet the
criteria for removal under the diversity rules for removal (28 U.S. Code § 14461.
(Appendix P). (In the Erie Doctrine Appendix N) Texas substantive law is used
on a diversity removal)
14
Burch filed a motion for remand and Rushmore filed a motion to
dismiss under FRCP 12(b)(6), The petition was clearly filed with Texas statutes
on the face of the petition. This case involves Texas Laws to which Burch needs to
only win on one:
1.
2.
3.
CAUSE 1 Fraudulent lien
CAUSE 2 Breach of contract
CAUSE 3 Deceptive trade practices
The Federal Question Must be Disclosed Upon the Face of the Complaint;
Plaintiff is the Master of the Complaint and nay eschew federal claims. Where, as
here, federal jurisdiction arises because of a “federal question,” the question "must
be disclosed upon the face of the complaint, unaided by the answer or by the
petition for removal." 1Gullv v. First Nat'l Bank in Meridian. (noting that the
federal question cannot be "merely a possible or conjectural one"). Thus, the rule
enables the plaintiff, as "master of the complaint," to "choose to have the cause
heard in state court" by eschewing claims based on federal law.2 The well-pleaded
complaint rule requires that federal question jurisdiction not exist unless a federal
question appears on the face of a plaintiffs properly pleaded complaint."3 The
Complaint in this matter asserts no federal claims. In Rains v. Criterion Systems.
Inc., 4the Ninth Circuit wrote: “Rains chose to bring a state claim rather than a
*- Gully v. First Nat'l Bank in Meridian, 299 U.S. 109, 112-13, 81 L. Ed. 70, 57 S. Ct. 96 (1936)
2 Calif, ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 839 (9th Cir. 2004).
3 Columbia Gas Transmission Corp. v. Drain, 237 F.3d 366, 369-70 (4th Cir. 2001), citing Merrell
Dow Pharm. Inc. v. Thompson, 478 U.S. 804, 808, 92 L. Ed. 2d 650, 106 S. Ct. 3229 (1986).
4 Rains v. Criterion Systems, Inc., 80 F.3d 339, 344 (9th Cir. 1996),
15
Title VII claim and was entitled to do so5. “See Pan American Petro. Corp, v.
Superior Court. (stating that "the party who brings a suit is master to decide what
law he will rely upon"). A plaintiff "may avoid federal jurisdiction by exclusive
reliance on state law."6, see also Ethridse v. Harbor House Restaurant ,7 ("If the
plaintiff may sue on either state or federal grounds, the plaintiff may avoid removal
simply by relying exclusively on the state law claim").
The Ninth Circuit held in Harris v. Provident Life & Acc. Ins, Co8:
Ordinarily, "federal jurisdiction exists only when a federal question is presented on
the face of the plaintiffs properly pleaded complaint."9
The District Court clearly exceeded its jurisdiction in accepting an
affirmative defense on a case that was removed late. In accordance with Rivet v.
Resions Bank of La.. 522 US 470.474-475 - Supreme Court 1998* Ttlhe presence
or absence of federal-question jurisdiction is governed by the 'well-pleaded
complaint rule,' which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiffs properly pleaded complaint." 10,n
A defense is not part of a plaintiffs properly pleaded statement of his or her
5 Pan American Petro. Corp. v. Superior Court, 366 U.S. 656, 662-63, 81 S.Ct. 1303, 1307-08, 6
L.Ed.2d 584 (1961) (quoting Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 subjects of this
Motion. S.Ct. 410, 411-12, 57 L.Ed. 716 (1913)).
6 Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987)
7 Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1395 (9th Cir.1988)
8 Harris v. Provident Life & Acc. Ins. Co., 26 F.3d 930, 933-34 (9th Cir. 1994):
9 Caterpillar Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987); accord
Ethridge v. Harbor House Restaurant, 861 F.2d 1389, 1393 (9th Cir.1988).
10 Caterpillar Inc. v. Williams, 482 U. S. 386, 392 (1987)
11 Louisville & Nashville R. Co. v. Mottley, 211 U. S. 149,152 (1908)
16
claim.12,13 ("To bring a case within the [federal-question removal] statute, a right or
immunity created by the Constitution or laws of the United States must be an
element, and an essential one, of the plaintiffs cause of action."). Thus, "a case may
not be removed to federal court on the basis of a federal defense, . . . even if the
defense is anticipated in the plaintiffs complaint, and even if both parties admit
that the defense is the only question truly at issue in the case."14
With two Texas defendants the removal did not meet the criteria for removal
under the diversity rules for removal (28 U.S, Code § 1446). (Appendix P) By
accepting the case, the Erie Doctrine (Appendix N) went into effect and any
ruling must be made based on Texas substantive law and rulings and federal
procedural laws. That would include in forma pauperis which none of the courts
took into consideration and used as a basis for dismissal. The case was removed to
the bankruptcy court by recommendation of the Magistrate Judge (Appendix G)
citing local Miscellaneous Local Order 33. (Appendix Q) The findings were
accepted by the district court on July 10, 2019. (Appendix F). The district court
dismissed the Burch motion for rehearing on August 29, 2019 (Appendix E). The
case was removed to the bankruptcy court but under FRBP 9027 (Appendix R),
both parties must give permission for the bankruptcy court to give orders. Without
this permission the bankruptcy court was only authorized to give findings of fact
and conclusions of law. A bankruptcy court must have subject matter jurisdiction to
^Metropolitan Life Ins. Co. v. Taylor, 481 U. S. 58, 63 (1987)
13 Gully v. First Nat. Bank in Meridian, 299 U. S. 109, 112 (1936)
14 Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1,14 (1983)
17
hear an advisory case. Otherwise, all orders from the bankruptcy court are void. In
fact, unless it is a core proceeding, the Bankruptcy court needs permission from the
district court and the parties to issue orders or a final judgement. Its function is
similar to how a magistrate judge works. 28 U.S. Code § 157(c)(2). (Appendix S)
That permission was never obtained in this case.
Jurisdiction is the authority to rule over an issue. But if a court acts without
authority, its judgments and orders are regarded as nullities. They are not voidable
but simply void, and form no bar to a remedy sought in opposition to them, even
prior to a reversal. They constitute no justification, and all persons concerned in
executing such judgments or sentences are considered in law as trespassers. Any
one of these is enough to remand a case back to state court. For a ruling to be valid
it must be made in a court with jurisdiction. It is well established law that without
jurisdiction, all the court’s decisions are void.15 The Court Must Satisfy Itself that
Federal Subject Matter Jurisdiction is proper before making rulings on the merits.
The court must be certain that federal subject matter jurisdiction is
proper before entertaining a motion by the defendant under Federal Rule 12(b)(6)
to dismiss the plaintiffs complaint for failure to state a claim upon which relief may
be granted. See, e.g., Akhlashi v. Berry.16 (remanding, concluding it better
practice to rule on motion to remand before motion to dismiss for failure to state a
is Elliott v. Lessee of Piersol, 26 U.S. 328 (1828)
16 Akhlaghi v. Berry, 294 F.Supp.2d 1238 (D. Kan. 2003)
18
claim);17 must establish removal jurisdiction before granting summary judgment).18
(Must determine subject matter jurisdiction before personal jurisdiction or venue);19
If the court at any time determines that it lacks jurisdiction over the
removed action, it must remedy the improvident grant of removal by remanding the
action to state court.20 Because the existence of federal subject matter jurisdiction is
a constitutional requirement, there is substantial case law to the effect that the
district court may remand a removed case where the lack of subject matter
jurisdiction is discovered at any time prior to the entry of judgment21, (remand may
be raised on appeal).
If a court that rendered judgement lacked jurisdiction of the subject matter.
or of the parties, or acted in a manner inconsistent with due process.22(Fifth
Amendment)
Burch repeatedly pushed for his due process rights in the bankruptcy court
by his Motion to Remand and his RULE 59 (e) MOTION TO AMEND A
JUDGEMENT AND RULE 60 (b) MOTION TO REVERSE ALL ORDERS AND
JUDGEMENTS IN CASE. The bankruptcy court was lacking the knowledge needed
to properly rule on this case. It did not understand how the wording of the
bankruptcy plan (Appendix T) is important and meaningful. On February 28,
17 Thompson v. Fritsch, , 966 F.Supp. 543 (D. Mich.1997)
18 Ren-Dan Farms, Inc. v. Monsanto Co., 952 F.Supp. 370 (D. La.1997)
19 National Union Fire Ins. Co. v. Liberty Mut. Ins. Co., 878 F.Supp.199 (D. Ala.1995).
20 28 U.S.C. § 1447; see, e.g. ARCO Envtl. Remediation, LLC v. Dep't of Health and Envtl. Quality,
213 F.3d 1108, 1113 (9th Cir. 2000).
21 28 U.S.C. § 1447
22 Reynolds v. Volunteer State Life Inx. Co. Tex. Cov. App. 80 S. W. 2d 1087, 1092
19
2020, The bankruptcy court dismissed the case (Appendix D)_based on FRCP
12(b)(6) without any opportunity for revisions given to Burch.
Burch appealed the Bankruptcy Courts Order denying Burch’s Motion but
was confronted with another action by Judge Mullin to stop Burch’s Fifth
Amendment Due Process rights by certifying, without explanation, Burch as a
frivolous litigator. This effectively stopped Burch’s appeal in the District Court.
(Appendix C) Burch then appealed to the Fifth Circuit Court of Appeals and
discovered that the Bankruptcy Judge, in violation of Federal Rules of
Bankruptcy Procedure 8009. (FRBP 8009) (Appendix U) was preventing the
transfer of the records despite Burch filing a timely Designation of Record.
In Rivet et al. v. Regions Bank OF Louisiana et al. 23 no subject matter
jurisdiction in bankruptcy court if debtor filed against creditor in a state court.
JURY TRIALS
This case is a paid jury trial case. A trial court, whether federal or state,
can hold a jury trial with certain exceptions and restrictions. The reason we have
the separations at the trial level is to divide the burden. For example, a Federal
District Court may hear a bankruptcy case and conduct a jury trial. However, 28
§157 USC (e) (Appendix U) reads, “If the right to a jury trial applies in a
proceeding that may be heard under this section by a bankruptcy judge, the
23 Rivet v. Regions Bank of La., 522 U.S. 470 (1998)
20
bankruptcy judge may conduct the jury trial if specially designated to exercise such
jurisdiction by the district court and with the express consent of all the parties”
This was a jury trial cases. The seventh amendment to the United States
Constitution commands that in suits at common law, the right to a trial by jury
must be preserved.24 However, the authority of a bankruptcy court to conduct a jury
trial is not derived from the seventh amendment; rather, it is statutory in nature.
Because these are jury trial cases a bankruptcy hearing is not allowed unless
agreed to by all parties. None of the parties agreed to the Bankruptcy Court hearing
this case. In 11a USC § 9015 (b). “If the right to a jury trial applies, a timely
demand has been filed pursuant to FRCP Rule 38(b) and the bankruptcy judge
has been specially designated to conduct the jury trial, the parties may consent to
have a jury trial conducted by a bankruptcy judge under 28 U.S.C. § 157(e)
(Appendix SI by jointly or separately filing a statement of consent within any
applicable time limits specified by local rule. However, the District Court also did
not agree to a jury trial being heard by the bankruptcy court.
U.S. CONST. Amend. VII. The seventh amendment provides: In Suits at
common law, where the value in controversy shall exceed twenty dollars, the right
of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re
examined in any Court of the United States, then according to the rules of the
common law. Id. The Supreme Court has construed "Suits at common law" to mean
24 Rivet v. Regions Bank of La., 522 US 470, 475 (1998) (citing Franchise Tax Bd. of Cal. v.
Construction Laborers Vacation Trust for Southern Cal., 463 U. S. 1, 14 (1983)).
21
that the seventh amendment preserves an individual's right to a trial by jury in
legal causes of action, as distinguished from equitable or admiralty jurisdiction.25
The Court has recognized an inherent difficulty in adequately distinguishing
between legal and equitable actions.26"Characterization of an issue as legal or
equitable is often a difficult federal law issue."27 Such characterization may often be
achieved by analyzing the character of the issue to be adjudicated, rather than the
unique form of the complaint or the pleadings.
TIME FOR REMOVAL
There are some very specific rules that must be followed in regard to the
amount of time allowed for filing a removal and filing an answer to an original
petition. Based on my personal experience, when the rule says thirty days, unless
you get an extension, it means thirty days, not thirty-one or sixty, In Tarrant
County, Texas the procedure is to e-file the courts copy and then bring a copy to the
courthouse and give it to the clerk for mailing. The clock starts ticking once the
petition and a true copy of the citation is handed to the U S Postal Service to be
sent, certified mail, return receipt requested.28 This is commonly known as the
“mailbox rule”. Thus, under Texas Rule of Civil Procedure 106(a) (TRCP 106(a) the
date the service is made is the date any person authorized by TRCP Rule 103
25 Ross v. Bernhard, 396 U.S. 531, 533 (1970) (quoting Parsons v. Bedford, 28 U.S. (3 Pet.) 433, 447
(1830), overruled by NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937)).
26 Ross, 396 U.S. at 533 (citing Whitehead v. Shattuck, 138 U.S. 146, 151 (1891)).
27 2 R. Rotunda, J. Nowak & J. Young Treatise on Constitutional Law: Substance and Procedure §
17.8, at 257 n.12 (3d ed. 1986)
28 TRCP 106(a)
22
deposits the citation and complaint in the US Postal system by registered or
certified mail.29(Appendix O)
As for receiving the citation 30the notice of removal of a civil action or
proceeding shall be filed within 30 days after the receipt by the defendant, through
service or otherwise, of a copy of the initial pleading setting forth the claim for relief
upon which such action or proceeding is based, or within 30 days after the service of
summons upon the defendant if such initial pleading has then been filed in court
and is not required to be served on the defendant, whichever period is shorter.
The service and removal dates for this case for Defendants were served on
November 26, 2018, under Texas Rules of Civil Procedure (TRCP) 106(a)(2). They
removed the case to Federal Bankruptcy Court thirty-two days later, Friday,
December 28, 2018. 28 U.S.C. $ 1446(a) (Appendix P). Defendant Freedom
Mortgage claimed in their Motion to remove that they were served on December 4
2018, which is a false statement.
DIVERSITY
Jurisdiction under Rule 28 USC § 1446 (b)(2)(B). (Appendix P). 28 USC §
1332 (a) (Appendix V). plainly states “The district courts shall have original
jurisdiction of all civil actions where all the parties are from different states.
Rushmore Loan Management Services LLC has citizenship in Dallas, Texas at 1755
Wittington PI; Dallas, TX 75234. Additionally Seterus was acquired by NationStar
29 Wright v Ford Motor Company, 508 F 3d 263, 269 (5th Cir. 2007)
so 28 U.S.C. § 1446 (b)(1)
23
Mortgage LLC and is located in Lewisville at 800 State Highway 121 Bypass, Lake
Vista 4 Lewisville, TX 75067 See Am. Motorists Ins. Co. v. Am. Emp. Ins. Co31
(“[T]he plaintiffs complaint must specifically allege each party’s citizenship.”);
Harvey v. Grey Wolf Drilling Co..82) (“fTlhe citizenship of a LLC is determined by
the citizenship of all of its members.”); see also Howery.33
Freedom filed for removal of the cases from Tarrant County Court to Federal
District Court without properly establishing diversity jurisdiction by correctly
alleging the citizenship of every member of the LLC (or LLP)34. (“[T]he plaintiffs
complaint must specifically allege each party’s citizenship.”)35; C‘[T]he citizenship of
a LLC is determined by the citizenship of all of its members.”);36 (“[T]he party
asserting federal jurisdiction must distinctly and affirmatively allege the citizenship
of the parties.”) (citations, quotations, and alterations omitted). In short, federal
diversity jurisdiction was not established by the allegations of the notice of removal.
Issues include Rushmore Loan Management Services LLC. Loan Care
Servicing Center. LLC, Seterus. Inc., and Federal National Mortgage
Association (14221 Dallas Pkwv. Dallas. Texas 75254).
As such, diversity fails and this court lacks subject matter jurisdiction, and
this case must be remanded to the Texas District Court for reassignment. If the
district court discovers that it lacks subject matter jurisdiction at any time before
31 Am. Motorists Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979)
32 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)
33 Howery, 243 F.3d at 919
34 Am. Motorists Ins. Co. v. Am. Emp. Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979)
35 Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir. 2008)
36 Howery, 243 F.3d at 919
24
final judgment, 28 USC §1447 requires remand (or transfer) even without a
petition from the plaintiff.37 ("Defendant's right to remove and plaintiffs right to
choose his forum are not on equal footing; for example, unlike the rules applied
when plaintiff has filed suit in federal court with a claim that, on its face, satisfies
the jurisdictional amount, removal statutes are construed narrowly. ..").
When the district court lacks jurisdiction, we have jurisdiction on appeal, not
on the merits but for the purpose of addressing the lower court's jurisdiction to
entertain the suit.38
On June 19, 2020, Burch appealed the IFP decision by the district court to the
United States Court of Appeals for the Fifth Circuit and filed a Motion to Proceed In
Forma Pauperis on July 17, 2020. On May 3, 2021, Burch was designated o be a
disabled veteran by the Veterans Administration due to an injury during his military
service. The amount awarded was small, but Burch made a motion on September 28,
2021, to remand the case and pay the filing fee under FRAP 12.1. Nine days later,
on October 9, 2021, Burch filed a motion under FRCP 62.1 requesting that the case
be remanded and the filing fee to be paid by Burch. On January 24, 2022, the Court
dismissed the case as frivolous and sanctioned Burch. The Fifth Circuit panel stated
that Burch should have been able to pay the filing fee based upon his Motion to pay
the Filing Fee due to his increase in income even though the increase in income came
after filing the motion. Also, Burch filed the FRAP 12.1 several days before he filed
the FRCP 62.1 even though it was four months later that the Fifth Circuit issued its
37 Bums v. Windsor Ins. Co., 31 F.3d 1092, 1095 (1 st Cir. 1994)
33 United States v. Corrick, 298 US 435, 440, 56 S.Ct. 829, 80 L.Ed. 1263 (1936))
25
ruling. The District Court ruled in the FRAP 62.1 Motion (Appendix B-2) that the
case was closed. It appears that the district court did not understand the wording of
the FRAP 62.1 motion anymore that Pro-se Burch.
The court relied on 28 U.S.C. §
1915(eH2)(B)(i). This rule says,
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the
court shall dismiss the case at any time if the court determines that the action or
appeal is frivolous or malicious.” But the basis for the courts frivolous determination
is “because Burch effectively has not identified any error in the dismissal without
prejudice of his bankruptcy appeal for failing to pay the filing fee in the district court,
he has not shown a nonfrivolous issue on appeal. Accordingly, the motion to proceed
IFP is denied, and the appeal is dismissed as frivolous”. Yet Burch clearly wrote,
“Based on the Courts own statute cited, Auffant v. Paine. Webber. Jackson &
Curtis. Jnc., 538 F.Supp. 120, 1202 (D.P.R. 1982). “court should consider overall
financial situation of applicant as well as assets and liabilities of spouse.
Burch also wrote, “Because Burch receives five dollars a week more than
allowed for IFP, the District Court Judge dismissed Burch’s appeal thus robbing
Burch of due process under the Fifth Amendment and Fourteenth Amendment
(Appendix Y) of the United States Constitution and Sections thirteen and
nineteen of the Texas Constitution.” And Burch wrote, “In the SCOTUS ruling in
Coppedse V, United States. 369 U.S. 438 >444-445 (1962), the requirement that
an appeal in forma pauperis be taken "in good faith" is satisfied when the defendant
seeks appellate review of any issue that is not frivolous. Id.446 If it appears from the
26
face of the papers filed in the Court of Appeals that the applicant will present issues
for review which are not clearly frivolous, the Court of Appeals should grant leave to
proceed in forma pauperis.” The Erie Doctrine requires that the case be covered under
Texas substantive laws. Campbell v. Wilder. 487 SW 3d 146,152 - Tex: Supreme
Court 2016 requires that a case be heard regardless of financial status if there is no
objection from the defense. There was no objection in this case therefore both the
district court and Fifth Circuit court rulings should be vacated.
In Neitzhe v. Williams. 490 US 319,325 - Supreme Court 1989 (as stated
in Anders v. California. 386 U. S. 738 (1967). this court defines frivolous as an
appeal on a matter of law is frivolous where "[none] of the legal points [are] arguable
on their merits." Id., at 744.
The only issue in the Burch motion to remand and pay the filing fee was
Burch’s request to have the case remanded to the district court with instructions for
the court to accept his filing fee and move forward with the case to either rule on the
merits of the case or remand the case to the State District Court. There is no
precedence for a ruling on changing an appeal from accepting the case as in forma
pauperis to paying the filing fee due to a change in income. However, this court did
rule in Denton v. Hernandez. 504 US 25.31 - Supreme Court 1992. “In enacting
the federal in forma pauperis statute, Congress "intended to guarantee that no citizen
shall be denied an opportunity to commence, prosecute, or defend an action, civil or
criminal, in any court of the United States, solely because . . . poverty makes it
impossible ... to pay or secure the costs" of litigation. Adkins v. E. L DuPont de
27
Nemours & Co.« 335 U. S. 331. 342 (1948) (internal quotation marks omitted). At
the same time that it sought to lower judicial access barriers to the indigent, however,
Congress recognized that "a litigant whose filing fees and court costs are assumed by
the public, unlike a paying litigant, lacks an economic incentive to refrain from filing
frivolous, malicious, or repetitive lawsuits." Neitzke. supra, at 324. In response to
this concern, Congress included subsection (d) as part of the statute, which allows the
courts to dismiss an in forma pauperis complaint "if satisfied that the action is
frivolous or malicious." It must be understood that Burch, on his own and with
obvious honesty, requested that he be allowed to pay the filing fee, but the court
turned him down. This act of honesty appears to have been the catalyst for the denial
of due process.
The Fifth Circuit denied the IFP on June 13, 2022, (Appendix B) seemingly
due to an increase in income that happened after the fact. The Fifth Circuit again
denied Burch the opportunity to pay the fee either on remand or upon dismissing the
IFP. This is an obvious denial of Burch’s Due Process rights under The 5th
Amendment to the U. S. Constitution. Article 1, Sections 13 and 19 of the
Texas Constitution, and Burch’s right to Free Speech as guaranteed under the
First Amendment of the U. S. Constitution, A rehearing Motion was denied on
July 14, 2022. (Appendix A)
XII. REASONS FOR GRANTING THE PETITION
This case illustrates the degree of the lack of knowledge of the laws and
precedence, pertaining to real estate and how they apply to bankruptcy. This lack of
28
knowledge is especially dangerous when you consider that it includes not only the
attorneys, but the judges as well. The absence of knowledge has resulted in judge’s
ruling by their feelings rather than the law. This has created an unprecedented level
of fear in the bankruptcy court lawyers of anything beyond a simple ledger sheet
bankruptcy.
The district courts and the circuit courts seem to also be uncomfortable with
bankruptcy cases. In the fear in the courts is due to a major misunderstanding of the
bankruptcy laws. For example, in the Northern District of Texas there is a local rule,
Local Miscellaneous Order 33. (Appendix Q) that is unconstitutional and does
not correspond to a need. This local rule essentially allows the district courts to avoid
bankruptcy issues even when they shouldn’t. Bankruptcy courts are restricted in the
cases heard to those that are directly related to the claims process. If a result of the
case brought to the bankruptcy court cannot alter the outcome of the bankruptcy case,
then it cannot be heard in the bankruptcy court.
Burch believes that the initial gate keeper should be the state court judge
simply because of the lighter case load, knowledge of the state law pertaining to the
petition, and for purposes of judicial efficiency.
If a case must go to the federal court, then it should only be removed to the
federal district court. The federal courts are awash with help in the form of law clerks,
Magistrate Judges, and Bankruptcy Court Judges. While still not as efficient as
having the state court be the gatekeeper it is still better than removing directly to a
29
bankruptcy court. This is because a bankruptcy court is limited in jurisdiction and,
more importantly, knowledge.
By removing to the district court, the district court can get findings of fact and
conclusions from the bankruptcy court on bankruptcy issues and from the magistrate
on all other issues. He can then decide if it is part of the bankruptcy such as a creditor
suing to increase what he should be paid or if it is simply a case related in some way
to the bankruptcy case that does not affect the outcome of the bankruptcy.
QUESTION 1:
“If a mortgage holder and/or a mortgage service company were to have their
lien extinguished in bankruptcy and then refuse to accept payments should
the void lien be removed, and the property returned to the debtor lien free?”
Texas statute provides that all loans over $50,000 must be in writing (TBCC
26 (Appendix L). If a loan is not in writing then a presentment letter (TBCC
3.501 Appendix J) must be sent to the lender giving them the opportunity to cure
the problem. If the issue is not cured in the time frame allotted, then the lien is
void. What the Texas Constitution forbids cannot be evaded even by agreement of
the parties, 39and what is "never valid is always void, m40
By lacking the knowledge of Texas law and not having the staff to properly
review the issue, the bankruptcy court was open to error that may not have
occurred had the case stayed with the district court where the district court could
rely on input from his law clerks, the bankruptcy court, and the magistrate court.
39 Tex. Land & Loan Co., 13 S.W. at 13
40 Inge v Cain, 65 Tex. 80 (1885)
30
The Magistrate made a grave error in this case by recommending that the case be
sent to the bankruptcy court saying that it was a core procedure, which it obviously
was not, and citing Local Miscellaneous Order 33 (Appendix Q) The Local
Miscellaneous Order 33 should be eliminated. Just because a case involved
the bankruptcy court at one point does not mean that the case is a federal case.
QUESTION 2;
“Should a bankruptcy court be allowed to accept a case removed late and to
give orders without permission from all parties as required in FRBP 9027
(Appendix R) and all orders from the bankruptcy and appeals courts be
reversed, and the case remanded to the state court”
It goes without saying that late removal is an automatic return to the state
court. The District Court clearly exceeded its jurisdiction in accepting an
affirmative defense on a case that was removed late. There are many rules and
precedence established that prevents this action such as 28 U.S. C. § 1446(b)(1)
(Appendix P) or FRBP 9027(a)(3) (Appendix R). This is but another example of
how the current procedures are broken. In the twelve-month period ending June 30,
2022, there were 40,403 original appeals in the United States. Of those only 570
were bankruptcy cases. The second highest category was “other U, S. Civil” with
2,330 cases. The bankruptcy cases amounted to just a little over one percent of the
total appeals filed. Yet in the only year available for bankruptcy filings there were
413,616 cases file which was a drop of twenty-four percent. This means that only a
little over one-tenth of one percent of cases were appealed. The system has
31
fomented an extreme prevention of due process robbing hundreds of thousands of
citizens of the United States of their Fifth Amendment protections.
FRBP 9027 (Appendix R) provides that a bankruptcy court must be given
the right to issue orders or final judgments. In this and all the other cases filed by
Burch this has never happened. Yet the bankruptcy court has taken it upon itself to
issue orders and final judgments without jurisdiction to do so. Again, if the district
court had kept the case as it should have and merely had the bankruptcy court
issue findings of fact and conclusions of law there would not have been a problem.
The courts must change their procedures for the good of the citizens of the United
States. Other than a criminal case where someone was wrongly prosecuted, taking
away a person’s life by wrongly removing all that they own is perhaps the next
worse.
QUESTION 3:
“Should an appeals court base their decision on an unconstitutional order?”
The court has set an incomplete basis for determining if a petitioner should
be granted in forma pauperis on appeal. As it currently stands the following holds
true:
1.
If from the face of the papers he has filed, it is apparent that the
applicant will present issues for review not clearly frivolous, the Court
of Appeals should then grant leave to appeal in forma pauperis”.
32
Copvedse v. United States. 369 US 438.446 - Supreme Court
1962. “
2.
28 U. S. C. § 1915 (Appendix X). is designed to ensure that indigent
litigants have meaningful access to the federal courts. Adkins v. E. L
DuPont de Nemours & Co.. 335 U. S. 331. 342-343 (19481
3.
An appeal on a matter of law is frivolous where "[none] of the legal
points [are] arguable on their merits." Anders v. California. 386 U.
S. 738 U. S.744 (1967)
These are some of the undecided aspects of the question of frivolous and IFP.
1.
In a case that is removed from state court under diversity the Erie
Doctrine requires state substantive rules apply. Does this mean that if
a state court does not deny a pauper status, then the IFP is
automatically approved?
2.
Is it frivolous for an appellant to motion for a remand and pay filing fee
if the financial position of the appellant should change? This question
will also apply the other way around if the appellant loses income and
can no longer pay the filing fee.
The definition of frivolous must be expanded to consider these issues. Until
then due process rights (Fifth Amendment) cannot be served, and freedom of
speech (First Amendment) will be denied.
33
Because of the definition remaining unanswered it has led to Burch,
currently a pauper, losing millions of dollars in property to the defendants who
cannot show a valid lien and have refused to show any ownership are interest in a
loan or deed of trust on these 22 properties. The courts have been used by the
defendants to take assets away summarily and unjustifiably from Burch and have
used procedure and disregard for the law in the taking of these properties.
The order given by the panel had the following, “Burch is again warned that
additional frivolous or abusive filings in this court, the district court, or the
bankruptcy court will result in the imposition of further sanctions. Burch is once
again admonished to review any pending appeals—particularly those in which he
requests leave to proceed IFP from an order dismissing his bankruptcy appeal in
the district court for failure to pay the filing fee and moves in this court to remand
based on new financial resources—and to withdraw any appeals that are frivolous.”
By Burch wanting to save the court, the defendant, and himself time and
money the case Burch had his Due Process rights taken away from him and he was
thus forced to shut up based on the courts statement that could not be heard on the
merits. This denied Burch his constitutional right to free speech under the First
Amendment and his right to due process as guaranteed under the Fifth
Amendment.
Because both the district court and Burch were confused as to the order of
filing the FRAP 12.1 and FRCP 62.1 the court needs to clarify that the district
court should be allowed to reopen the case temporarily to rule on the FRCP 62.1
34
motion or that the district court has the authority to rule on a FRCP 62,1 motion
even though the case in the district court is closed.
STATEMENT OF JURISPRUDENTIAL IMPORTANCE
Therapeutic jurisprudence (TJ) studies law as a social force (or agent) which
inevitably gives rise to unintended consequences, which may be either beneficial
(therapeutic) or harmful (anti-therapeutic). It envisions lawyers practicing with an
ethic of care and heightened interpersonal skills, who value the psychological
wellbeing of their clients as well as their legal rights and interests, and to actively
seek to prevent legal problems through creative drafting and problem-solving
approaches. In this case anti-therapeutic jurisprudence due to the actions of the
Respondents cost Burch millions of dollars and all his income. The Respondents
refused to follow the first bankruptcy plan and tried to foreclose on the property
even though the lien was void. The actions of the Respondents are the definition of
anti-therapeutic jurisdiction and the basis of all subsequent legal actions by Burch.
XIII. CONCLUSION
For the foregoing reasons, Burch respectfully requests that this Court issue a writ
of certiorari to review the Order of the Court of Appeals for the Fifth Circuit.
DATED this 30th day of September 2022
Res
itfulh^sub
!te
-
William Paul Burch-Pro se
5947 Waterford Dr.
Grand Prairie, Texas 75052
(817) 919-4853
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.