A MESSAGE TO THE CFPB, THE ‘CONSUMER WATCHDOG’

BRIEF OF THE CFPB ‘ THE CONSUMER WATCHDOG’

No. 19-13015

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

JOANNA BURKE, JOHN BURKE,
Interested Parties/Putative Plaintiffs- Intervenors–Appellants,

CONSUMER FINANCIAL PROTECTION BUREAU
Plaintiff–Appellee,

OFFICE OF THE ATTORNEY GENERAL,
State of Florida, Department of Legal Affairs, et al., Consolidated Plaintiffs,

versus

OCWEN FINANCIAL CORPORATION,
a Florida corporation, OCWEN LOAN SERVICING LLC,

a Delaware limited liability company, OCWEN MORTGAGE SERVICING INC.,
a U.S. Virgin Islands corporation, Defendants – Appellees.

On Appeal from the United States District Court for the Southern District of Florida

No. 9:17-cv-80495

BRIEF OF DEFENDANT-APPELLEE CONSUMER FINANCIAL PROTECTION BUREAU

Mary McLeod
General Counsel

John R. Coleman
Deputy General Counsel

Steven Y. Bressler
Assistant General Counsel

Consumer Financial Protection Bureau
1700 G St., NW Washington, DC 20552
202-435-9396 (Telephone)

Bernard John Barrett, Jr.
(or whatever his preferred name is)
Senior Litigation Counsel

STATEMENT OF ISSUES

1. Whether two individuals who have ongoing litigation with defendants related to their mortgage may, for that reason alone, intervene as a matter of right pursuant to Rule 24(a)(2) of the Federal Rules of Civil Procedure in a federal government enforcement action concerning the defendants’ mortgage servicing activities?
2. Whether the district court abused its discretion under Rule 24(b) of the Federal Rules of Civil Procedure when it declined to allow permissive intervention in a federal government enforcement action related to mortgage servicing by two individuals who have ongoing litigation with defendants about their mortgage?

STATEMENT OF THE CASE

I.                  The Bureau’s Civil Action To Enforce Federal Consumer Financial Law

The United States Consumer Financial Protection Bureau (“Bureau” or “CFPB”) brought this action on April 20, 2017 against Ocwen Financial Corporation, Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC (collectively, “Ocwen”). The Bureau’s Complaint alleges that Ocwen committed a wide range of illegal acts and practices in connection with its servicing of millions of mortgages. See, e.g., Doc. No. 1 at 7, ¶ 25 (alleging that Ocwen serviced 2,861,918 residential loans in 2014). The challenged practices involve “numerous violations of Federal consumer financial laws” including the improper calculation of loan balances, misapplied payments, neglected escrow and insurance payments, failure to address consumer complaints, and transfers of mortgage servicing rights without accurate supporting account information.1 The Bureau seeks injunctive relief, consumer redress and civil money penalties. Id. at 91-92 (Prayer for Relief).2

Discovery in this action began in August 2017. Joint Opposition to Burke Motion, Doc. No. 224 at 2. Expert and fact discovery in the Bureau’s action are now completed3 and dispositive motions are due March 31, 2020. Joint Scheduling Report, Doc. No. 538 at 2.

The State of Florida, through two Plaintiffs, the Office of the Attorney General and the Office of Financial Regulation, filed a parallel action against the same Defendants. Office of the Attorney General, State of Florida v. Ocwen, S.D. Fla. No. 9:17-cv-80496. Complaint in State of Florida v. Ocwen, Doc. No.1. The Florida Plaintiffs’ action was consolidated with this action for discovery and dispositive motions. Order, Doc. No. 283. The State of Florida Plaintiffs and the Bureau have moved to consolidate the two actions for trial. Motion, Doc. No. 570.

II.              Appellants’ Motion to Intervene

John Burke and Joanna Burke, proceeding pro se, served the Bureau with a Motion to Intervene in the Bureau’s enforcement action on December 27, 2018. Joint Opposition to Motion, Doc. No. 224 at 1. The Appellants then asserted simply that:

Applicants are retired residents of Kingwood, Texas. As homeowners and U.S. citizens they have a vested and material interest in the outcome of this case.

The Applicants seek to intervene in this case to protect their interests in their homestead … .

Motion to Intervene, Doc. No. 220 at 3. Throughout the proceedings before the district court, Appellants contended, without further details or support, only that their home was “under wrongful order of foreclosure” and that “Ocwen Loan Servicing, LLC, is the alleged mortgage servicer… .” Id. They acknowledge litigating at least two related actions which they identify as: 1) “DEUTSCHE BANK NAT’L TRUST CO., as Trustee of the Residential Asset Securitization Trust 2007-A8, Mortgage Pass-Through Certificates, Series 2007-H under the Pooling and Servicing Agreement dated June 1, 2007 v. JOANNA BURKE, et al, Civil Action: 4:11-cv-01658, and appellate action; 18- 20026, No.18-20026, Fifth Circuit,” id. at 3 n.1, and 2) “Joanna Burke v. Ocwen Loan Servicing, LLC, Case No. 4:18-cv-4544, District Court, Southern District of Texas, Houston Division,” id. at 4 n.2.

Neither the Appellants, their mortgage, nor any activity particular to their mortgage is mentioned in the Bureau’s Complaint or otherwise reflected in the record of this action, except to the limited extent mentioned in Appellants’ pleadings with respect to their motion to intervene. Appellants do not cite any relevant part of the record or contend otherwise in their brief.

The Bureau and Ocwen filed a joint opposition to Appellants’ intervention motion, Doc. No. 224, arguing that Appellants’ motion did not satisfy any of the requirements for either intervention of right or permissive intervention. Appellants replied, Doc. No. 237, and four months later filed a “Notice of Inquiry as to Pending Motion to Intervene” arguing the matter and asking for a decision on their motion. Doc. No. 359.

The district court denied the motion to intervene. Doc. No. 375.

The court held that Appellants “do not meet the requirements for intervention as of right because they have failed to establish that their interests, if any, would be impaired by the disposition of this action, particularly since the proposed Intervenors could raise or could have raised their concerns [in their separate litigation].” Id. at 4. In addition, the court held that Appellants’ “interests, if any, would be adequately represented by CFPB.” Id.

The district court also found that “permissive intervention is not warranted.” Id. The court held that Appellants “fail[ed] to identify [the requisite] common question of fact or law. Id. The court also noted that intervention at this stage of the litigation would cause the parties to “suffer prejudice and undue delay.” Id. at 5.

Appellants moved for reconsideration. Doc. No. 408. The Court denied that motion on July 3, 2019, Doc. No. 411, and Appellants noticed this appeal on August 2, 2019.

STANDARD OF REVIEW

Federal Rule of Civil Procedure 24(a)(2) provides that, “on timely motion,” a district court must permit intervention by anyone who:

claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

This Court reviews the denial of a motion to intervene of right de novo. Tech. Training Assocs., Inc., 874 F.3d at 695.

Rule 24(b) provides that, on “timely motion,” a district court “may” permit intervention by anyone who “has a claim or defense that shares with the main action a common question of law or fact. . . .”  Fed. R. Civ. P. 24(b). In exercising that discretion, the district court “must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Id. A district court’s denial of a permissive intervention motion is reviewed for a “clear abuse of discretion.” Fox, 519 F.3d at 1301.

SUMMARY OF ARGUMENT

The district court properly denied Appellants’ motion for intervention as a matter of right. As the district court found, Appellants do not identify any cognizable interest sufficient to support intervention as of right; do not explain how any interest could be impaired if they are not parties to this litigation; and, in any event, are adequately represented by the Bureau.

The district court also did not abuse its discretion by denying the Appellants’ motion for permissive intervention because the motion does not identify a common question of law or fact, and would result in delay and prejudice to the parties.

ARGUMENT

1. The Appellants’ Motion Does Not Establish Any of the Prerequisites for Intervention as a Matter of Right Under Rule 24(a)(2)

This Court has explained that:

To intervene of right under Rule 24(a)(2), a party must establish that “(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit. Fox, 519 F.3d at 1301-1302 (quoting Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989)).

Putative intervenors have the burden of proof — they “must establish” all four bases for intervention as a matter of right. Id. at 1301; Huff v. Comm’r of IRS, 743 F.3d 790, 795 (11th Cir. 2014) (“Rule 24(a)(2) requires a third party moving for intervention to show” each of its four bases); Stone v. First Union Corp., 371 F.3d 1305, 1308 (11th Cir. 2004) (putative intervenor “must establish” each of the four Rule 24(a)(2) factors). The Appellants’ filings here do not establish that they have a right to intervene in this matter.

A.               Appellants Have Not Established a Sufficient Interest in the Transactions that Are the Subject of the Bureau’s Action

Rule 24(a)(2) requires that a putative intervenor “claim an interest relating to the property or transaction that is the subject of the action.”  Intervention of right “is only available if the interest asserted is ‘direct, substantial, [and] legally protectable.’” Huff, 743 F.3d at 796. And the interest must be a “significantly protectable interest.” Chiles, 865 F.2d at 1212 (quoting Donaldson v. United States, 400 U.S. 517, 531 (1971)). In addition, “an intervenor’s interest must be a particularized interest rather than a general grievance.” Id.

Appellants have not alleged anything approaching a sufficient interest in this action for intervention as a matter of right. Their initial motion relied simply on their assertion that they were homeowners whose mortgage was in foreclosure and that Ocwen was their “alleged servicer.” Motion to Intervene, Doc. No. 220 at 3. Before this Court, they repeat this assertion, Appellants’ Brief at 23-24, and also repeat their assertion that they “seek to become intervenors in this lawsuit to

(1) make a ‘material’ impact on this Florida case, (2) help save their own homestead from wrongful foreclosure and (3) help homeowners in ‘distress’ nationwide.” Id. at 26.

Since Appellants’ initial motion, they have failed to explain any connection between their foreclosure dispute and this litigation, failed to even describe their dispute with Ocwen, and made no attempt to place their dispute with Ocwen in the context of this pending Bureau enforcement action. Their unexplained mortgage dispute may be independently substantial, and their rights certainly may be subject to legal protection, but they provided no basis for the district court (or this Court) to conclude that they have a significant, particularized interest in this action, as opposed to a general grievance. Appellants have thus not met their burden to establish a sufficient interest for intervention by right, and the district court committed no error in denying their motion for intervention by right.

B.               The Appellants Interests Are Not at Risk of Being Impaired and May Be Pursued Without Their Intervention in this Action

Putative intervenors must also show that their interest may be adversely impacted if they are not able to intervene and protect that interest.                  Rule 24(a)(2). But “[a] prospective intervenor is also not likely to suffer impairment of its interests where it is free to assert its rights in a separate action.” Anderson Columbia Envtl., Inc. v. United States, 42 Fed. Cl. 880, 882 (1999); see also Worlds v. Dept. of Health & Rehab. Services, 929 F.2d 591, 594 (11th Cir. 1991) (holding that putative intervenor’s ability to protect his interests in another action will not be impaired by denial of intervention). Appellants admit that they are actively engaged in separate litigation to assert their claims and protect their interests. Motion, Doc. No.220 at 3 n.1 and 4 n.2.

There is no basis in the record to conclude that the Appellants interest may be impaired or impeded for purposes of Rule 24(a)(2) if they are not parties to this action.

C.               Appellants’ Interests in This Litigation, if Any, Are Adequately Represented by the Bureau

Under Rule 24(a)(2) putative intervenors must also show that their interests are not adequately represented by a current party to the litigation. Here the Bureau seeks to recover from Ocwen redress for consumers who were harmed by Ocwen’s unlawful mortgage servicing activities. If Appellants suffered cognizable harm on account of any of the unlawful activities alleged in the Bureau’s complaint, they would be a beneficiary of such redress.

As already explained, Appellants do not describe their pending litigation with Ocwen beyond generally alleging that it relates to Ocwen’s servicing of their mortgage and their foreclosure. To the extent Appellants have any interest in the unlawful practices alleged by the Bureau, those interests would be more than adequately represented by the Bureau. The Bureau is pursuing a wide range of allegations concerning the mortgage servicing activities of Ocwen to obtain injunctive relief and compensation for homeowners. If Appellants’ grievances match statutory and regulatory violations being pursued by the Bureau in this action, as they must for Appellants to have the necessary interest to otherwise intervene in this action, then Appellants’ interests are adequately represented by the Bureau. “[W]hen the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance.” Baker v. Wade, 743 F.2d 236, 240-21 (5th Cir. 1984) (quoting Bush v. Viterna, 740 F.2d 350, 355 (5th Cir.1984) and Int’l Tank Terminals, Ltd. v. M/V Acadia Forest, 579 F.2d 964, 967 (5th Cir.1978)). Appellants have not demonstrated any “adversity of interest, collusion or nonfeasance.”

A “presumption of adequate representation also arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee … .” Baker, 743 F.2d at 241. Appellants have adduced nothing to overcome that presumption here, so for that reason, as well, the Court should find that the Bureau adequately represents Appellants’ interests in this action for purposes of Rule 24(a)(2).

In addition, the Appellants acknowledge that they are protecting their interests in separate litigation. Motion, Doc. No.220 at 3 n.1 and 4

n.2. This Court recognizes “the strong judicial policy against nonexpress private intervention in government enforcement litigation when an adequate private remedy is freely accessible.” U.S. v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826, 844 (5th Cir. 1975).

II.              The District Court Did Not Abuse its Discretion in Denying the Motion for Permissive Intervention

The district court also denied Appellants’ motion for permissive intervention, a decision this Court reviews only for “clear abuse of discretion.” Fox, 519 F.3d at 1301.

A.               The District Court Acted within its Discretion In Denying Permissive Intervention When Appellants Can Assert Their Rights Through Separate Actions.

Where, as here, “an appellant has other adequate means of asserting its rights, a charge of abuse of discretion in the denial of a motion for permissive intervention would appear to be almost untenable on its face.” See Worlds, 929 F.2d at 595 n.20. Because Appellants have pursued their claims in separate actions, this district court cannot be said to have clearly abused its discretion in denying their motion for permissive intervention.

B.               Appellants Have Not Identified a Common Question of Law or Fact

Moreover, the district court likewise did not clearly abuse its discretion when it held that “the proposed Intervenors fail to identify a common question of fact or law in support of permissive intervention.” Doc. No. 375 at 4. As explained supra at I.A., pp 10-12, Appellants only generally assert that they have had an unexplained dispute with Ocwen since at least 2011 concerning the servicing of their mortgage and their foreclosure.  They have never connected their dispute to any issue of law or fact at issue in this litigation. The district court’s holding noting that failure is thus supported by the record, and was not an abuse of discretion, clear or otherwise.

C.               Intervention Would Unduly Prejudice the Rights of the Other Parties

The district court appropriately concluded that “the present parties in this action would suffer prejudice and undue delay if the proposed intervenors were permitted to intervene in this case.” Order on Motion, Doc. No 375 at 5. Appellants sought to intervene in this action 20 months after it was filed and after 17 months of discovery.

Allowing intervention here by a new party, even if it were otherwise proper, would require providing these non-parties an opportunity to develop the record – but 17 months of discovery had already occurred when Appellants filed their motion. The prejudice to the parties has only increased since then. Discovery in the Bureau’s action is now completed and dispositive motions due March 31, 2020. Joint Status Report. Doc. No. 538 at 2.

A district court does not abuse its discretion by relying on prejudicial delay to deny a motion for permissive intervention. Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 956 (9th Cir. 2009) (“It was well within the district court’s discretion to find that the delay occasioned by intervention outweighed the value added … .”) The interjection of Appellants as parties to this action at this late stage would impede and delay its resolution and thereby prejudice the other parties.

III.          Appellants’ Other Arguments Were Waived Below and, In Any Event, Lack Merit

Appellants’ raise two other arguments on appeal which are not properly before this Court because they were waived in the district court. This Court should, accordingly, not reach them. Moreover, even if the Court did consider those waived arguments, they provide no basis to reverse the district court’s ruling.

A.               Appellants Are Not Entitled to Intervene to Replace the Bureau Based on Speculation that the Bureau May Be Unable to Prosecute this Action or Otherwise

In their Brief, Appellants argue that the “reason for allowing intervention of right in this case [included]; to ensure if Ocwens’ [sic] motion to dismiss on the constitutionality question was granted (which was pending before the lower court at the time), it could allow the Burkes to become the lead Plaintiffs’ in the case.” Appellants’ Brief at 46 (brackets in original). By this argument, Appellants have sought to justify intervention because of challenges to the constitutionality of a provision in the Bureau’s organic statute that purports to restrict the President’s ability to remove the Bureau’s Director. See e.g. Appellants’ Brief at 39-40 and 46; Reply, Doc. No. 237 at 37; Letter, Doc. No. 359 at 1; Motion for Reconsideration, Doc. No. 408 at 41. Appellants assume that once they have been granted permission to intervene, the action will continue under their control if the Bureau no longer pursues it.

But private individuals could not pursue all of the claims in the Bureau’s complaint (for example, they could not pursue the Consumer

Financial Protection Act claims), nor could they obtain relief for anyone other than themselves.

This argument was made for the first time in Appellants’ reply below. An argument first raised in a reply is not properly before a court and cannot be reviewed on appeal. See United States v. Oakely, 744 F.2d 1553, 1556 (11th Cir. 1984).  Because this argument was not raised in a timely fashion below, it was not properly before the district court and therefore is not properly before this Court. Id., see also Hughes v. Stryker Corp., 423 F. App’x 878, 881 (11th Cir. 2011) (Appellant cannot make an argument that she had failed to make during the initial briefing of the summary judgment that is on appeal).4

B.               Appellants Cannot Intervene to Pursue Private Discovery

Appellants make a second argument here that was not properly raised below. They contend, without further explanation, that they “wish to obtain facts and access documents which would help their current and ongoing Appellate case in Texas.” Appellants’ Brief at 46- 47 (referring in part to obtaining sealed documents). The district court noted “that intervention is not permitted to allow a party to seek or obtain evidence for other litigation … .” Order on Motion for Reconsideration. Doc. No. 411 at 3.

Once again, this argument was not made in Appellant’s Motion to Intervene below but instead was first raised in a letter to the district court after that briefing had been completed. This argument too, was not properly before the district court and therefore is not properly before this Court.

In addition, the authorities that Appellants cite in support of this argument are inapposite. Appellants principally rely on motions by news organizations for permissive intervention in settled actions based on the public interest in newsworthy public conduct.5 See e.g. Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015) (Publisher pursued an unopposed motion to intervene to challenge seal and protective orders in two closed actions concerning Missouri execution protocols); Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994) (Newspaper sought to intervene in former police chief’s settled civil rights action to obtain settlement agreement).

Appellants are not media organizations seeking to intervene because of their interest in publishing news about the activities of government; they are private parties seeking to commandeer a law enforcement action to obtain discovery they apparently could not get in their own, private suit. This hardly establishes that the district court here abused its discretion when it denied the motion for permissive intervention.

5 Appellants also rely on intervention decisions which have no application here because they were decided under the unique intervention provision of the False Claims Act applicable only to intervention by the United States, 31 U.S.C. § 3730. See Appellants’ Brief at 49-50 citing Sharpe ex rel. United States v. Americare Ambulance, M.D.Fla No 8:13-cv-1171-T-33AEP, 2017 WL 2986258 (July 13, 2017) (Order granting intervention by U.S.) and United States ex rel. Baklid-Kunz v. Halifax Hosp. Med. Ctr., No. 6:09-cv-1002-ORL-31, 2011 WL 4480846 (M.D. Fla. Sept. 27, 2011) (Same).

CONCLUSION

Based on the foregoing, the Bureau respectfully asks this Court to uphold the judgment of the district court denying Appellants’ motion to intervene and dismiss this appeal for lack of jurisdiction.

Date:  March 11, 2020                   Respectfully submitted,

Mary McLeod
General Counsel

John R. Coleman
Deputy General Counsel

Steven Y. Bressler
Assistant General Counsel

/s/ Bernard John Barrett, Jr.        Bernard John Barrett, Jr.
Senior Litigation Counsel
Consumer Financial Protection Bureau
1700 G Street, NW Washington, DC 20552
Tel: (202) 435-9396
Counsel for Plaintiff-Appellee Consumer Financial Protection Bureau

CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing brief complies with the type- volume limit of Fed. R. App. P. 32(a)(7)(B) because, excluding the parts of the document exempted by Fed. R. App. P. 32(f) this document contains 3,978 words.

This brief has been prepared in a proportionally spaced typeface using Microsoft Word from the Office 365 Suite in 14 point Century Schoolbook font.

/s/ Bernard John Barrett, Jr.       
Bernard John Barrett, Jr.
Senior Litigation Counsel

Consumer Financial Protection Bureau 1700 G Street, NW
Washington, DC 20552
Tel: (202) 435-9396
Counsel for Plaintiff-Appellee Consumer Financial Protection Bureau

BRIEF OF THE $3 BILLION DOLLAR ADMONISHED OCWEN

No. 19-13015

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

JOANNA BURKE and JOHN BURKE,
Movants-Appellants,

CONSUMER FINANCIAL PROTECTION BUREAU,
Plaintiff-Appellee.

v.

OCWEN FINANCIAL CORPORATION, OCWEN LOAN SERVICING LLC, and OCWEN MORTGAGE SERVICING INC.,
Defendants-Appellees.

Appeal from the United States District Court for the Southern District of Florida,

No. 9:17-cv-80495, Judge Kenneth A. Marra

RESPONSE BRIEF OF DEFENDANTS-APPELLEES

Edwina B. Clarke

GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000

March 11, 2020

Sabrina M. Rose-Smith

GOODWIN PROCTER LLP
1900 N Street, NW Washington, D.C. 20036
Tel.: +1 202 346 4000
Counsel for Defendants-Appellees

(Additional counsel listed on signature page)

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Burke v. Ocwen v. CFPB, Case No. 19-13015

Case: 19-13015      Date Filed: 03/11/2020      Page: 11 of 37

INTRODUCTION

Joanna and John Burke appeal from the denial of their pro se petition to intervene in this suit brought by the Consumer Financial Protection Bureau (“the CFPB”) against Ocwen Financial Corporation, Ocwen Mortgage Servicing, Inc., and Ocwen Loan Servicing, LLC (collectively, “Ocwen”), for alleged violations of various federal consumer financial laws. The Burkes filed their motion more than twenty months after the case began and after more than a year of extensive discovery. In their motion, they alleged that they were facing foreclosure of their home, and that Ocwen—whom they had already sued in Texas court—was responsible for servicing their mortgage. They argued that their intervention in the CFPB’s case was necessary to protect “their interest in their homestead” and the interests of “homeowners” more broadly, and to “make a material impact” in this case. Ocwen and the CFPB jointly opposed the Burkes’ motion, which the district court denied. On appeal, the Burkes repeat many of the same conspiracy theories and unsupported attacks on Ocwen and the CFPB that they alleged below, while failing to articulate any comprehensible, legally-supported rationale for why their intervention in this case is warranted. The Court should ignore the Burkes’ baseless and irrelevant attacks on the parties and affirm the district court’s well- reasoned decision.

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JURISDICTIONAL STATEMENT

The district court had jurisdiction under 28 U.S.C. § 1331 and 12 U.S.C. § 5565(a). It entered an order denying Appellants’ motion to intervene on May 30, 2019. Appx 8 (ECF 375).1 Appellants moved for reconsideration of that order on June 14, 2019. Appx 9 (ECF 408). The district court denied the motion for reconsideration on July 3, 2019.   Appx 10 (ECF 411).   The Burkes noticed an appeal on August 2, 2019. Appx 2 (ECF 414). Under this Circuit’s “anomalous rule,” this Court has provisional jurisdiction to determine whether the district court correctly held that Appellants were not entitled to intervene under Federal Rule of Civil Procedure 24.   See Chiles v. Thornburgh, 865 F.2d 1197, 1212 (11th Cir. 1989).

STATEMENT OF ISSUES ON APPEAL

1. Whether the district court erred when it held that Appellants do not have the right to intervene in this action under Federal Rule of Civil Procedure 24(a).
2. Whether the district court clearly abused its discretion when it denied Appellants permission to intervene under Federal Rule of Civil Procedure 24(b).

1 Citations to Appellants’ Appendix are in the form: Appx [Tab] (ECF [document number]), at [page(s)]. Citations to Ocwen’s Supplemental Appendix are in the form SAppx [document number], at [page(s)].

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STATEMENT OF THE CASE

In April 2017, the CFPB Brings This Action Against Ocwen for Alleged Violations of Federal Consumer Financial Laws.

The CFPB initiated this action on April 20, 2017, alleging that Ocwen, in servicing borrowers’ loans, engaged in various acts and practices in violation of federal consumer financial laws.2 SAppx 1. In particular, the Complaint alleges that Ocwen failed to verify the accuracy of loan information, resulting in its collecting inaccurate loan payments and initiating wrongful foreclosure proceedings, among other things. Id. at 9, 21. The vast majority of the claims— including all claims related to wrongful foreclosure—are limited to conduct that allegedly occurred after January 2014. Id. at 69-91.3 The CFPB seeks civil penalties as well as remedies for affected borrowers, including injunctive relief,

2 The Complaint alleges violations of Sections 1031 and 1036 of the Consumer Financial Protection Act, 12 U.S.C. §§ 5531, 5536; Sections 807(2)(a), 808(10), and 808 of the Fair Debt Collections Practices Act, 15 U.S.C. §§ 1692e(2)(A), 1692e(10), and 1692f; Sections 6 and 19 of the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2605, 2617, and Regulation X, 12 C.F.R. § 1024; Section 105(a) of the Truth in Lending Act, 15 U.S.C. §§ 1604(a), and Regulation Z, 12 C.F.R. § 1026; and Section 3(b) of the Homeowners Protection Act of 1998, 12 U.S.C. § 4902(b). The CFPB amended the Complaint after the district court denied the Burkes’ motion to intervene. See SAppx 481. The amendments are not relevant to this appeal.

3 The remaining claims (relating to “add-on products” that Ocwen supposedly sold to borrowers) concern acts that allegedly occurred after July 2011. SAppx 1, at 73-

75. The CFPB dropped those claims when it amended the Complaint. See SAppx 481.

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“rescission or reform of contracts; refund of moneys; restitution; and payment of damages or other monetary relief.” Id. at 92.

On June 23, 2017, Ocwen moved to dismiss the Complaint, see SAppx A, at 12 (ECF 31), and the case proceeded to discovery—a process that has taken more than two years. Id. at 12 (ECF 29).4 On September 5, 2019, the district court granted in part and denied in part Ocwen’s motion to dismiss. Id. at 51 (ECF 452). The CFPB filed an amended complaint in October 2019, see SAppx 481, which Ocwen answered in November 2019, see SAppx 505 (answer); SAppx 550 (amended answer). Discovery is now closed, with dispositive motions due at the end of March and trial scheduled for October. SAppx A, at 56 (ECF 507).

In January 2019, Joanna and John Burke Move to Intervene in the CFPB’s Enforcement Action.

On January 4, 2019, more than twenty months after the action began and after over a year of discovery, Joanna and John Burke sought leave to intervene under Federal Rule of Civil Procedure 24. See Appx 3 (ECF 220). The CFPB and Ocwen jointly opposed the motion to intervene, Appx 5 (ECF 224), and the Burkes filed a reply brief, Appx 6 (ECF 237).

4 The case was consolidated for discovery and motion practice with an action against Ocwen by the Florida Attorney General and the State

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In support of their motion, the Burkes alleged that they are homeowners, that their house is under an order of foreclosure, and that the house is subject to a loan that is serviced by Ocwen.  Appx 3 (ECF 220), at 3.  They stated that they sought to intervene in the CFPB’s suit to “protect their interests in their homestead . . . and that of similar homeowners nationwide.” Id.  And they argued that the CFPB would not protect their interests because the agency is “conflict[ed]” and “disorganized.” Appx 4 (ECF 220-1), at 21-23.  The Burkes’ motion also included a host of allegations completely unrelated to the CFPB’s action against Ocwen, including, for example, allegations regarding the Mortgage Electronic Registrations Systems, Inc. (“MERS”), the Texas State Consumer Task Force, the appointment of Steven Mnuchin as United States Treasurer, and the 2008 financial crisis. See generally Appx 3 (ECF 220), Appx 4 (ECF 220-1).

The Burkes stated in their motion that they were already parties to two litigations involving their home. See Appx 3 (ECF 200), at 3-4. First, in April 2011, Deutsche Bank initiated an action to foreclose on their property, see Deutsche Bank Nat’l Trust Co. v. Burke, 4:11-cv-01658 (S.D. Tex.). That action ended in September 2018 when the Fifth Circuit held that the foreclosure should proceed. See Deutsche Bank Nat’l Trust Co. v. Burke, 902 F.3d 548, 552 (5th Cir. 2018) (per curiam). Second, in September 2018, after the Fifth Circuit’s decision in the foreclosure action, the Burkes sued Ocwen, alleging that Ocwen violated

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state and federal law in servicing their loan. See Burke v. Ocwen Loan Servicing, LLC, No. 4:18-cv-4544, Dkt. No. 19 (S.D. Tex.) (describing claims). When the Burkes moved to intervene in this case, that case was still ongoing; it has since been dismissed for want of prosecution. See id., Order of Dismissal, Dkt. No. 29 (Mar. 19, 2019).

The District Court Denies the Motion To Intervene.

On May 30, 2019, the district court denied the Burkes’ motion to intervene. Appx 8 (ECF 375). The court held that the Burkes did not meet the requirements for intervention as of right under Rule 24(a) “because they have failed to establish that their interests, if any, would be impaired by the disposition of this action, particularly since [they] could raise or could have raised their concerns either in their individual foreclosure lawsuit or the recent litigation they initiated in Texas federal court.” Id. at 4. The district court added that any interest the Burkes did have in the litigation “would be adequately represented by CFPB, who seeks to hold Ocwen accountable for allegedly wrongfully foreclosing upon property based upon inadequate information.” Id.

The district court also denied the Burkes’ request for permission to intervene under Rule 24(b). Id. The court held that the Burkes “fail to identify a common question of fact or law in support of permissive intervention.” Id. The court also held that even if there was “some overlap between CFPB’s case and the [Burke’s

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claims], the present parties in this action would suffer prejudice and undue delay if the [Burkes] were permitted to intervene in this case.” Id. at 4-5. “Permitting intervention would inevitably force the parties in this case to litigate factual questions not presently at issue, and the scope of discovery, which had already been underway for over a year when the Motion to Intervene was filed, would necessarily expand to include those new issues.” Id. at 5.

The Burkes moved for reconsideration of the court’s order. See Appx 9 (408). Their motion for reconsideration contained a new argument not in their original motion; they asked the district court to permit them to intervene to obtain information from Ocwen that might help them in their action against Ocwen in Texas. Id. at 3-4. The district court denied the motion for reconsideration and held that “intervention is not permitted to allow a party to seek or obtain evidence for other litigation as asserted by the [Burkes].” Appx 10 (ECF 411), at 2-3.

The Burkes appeal. See Appx 2 (414).

SUMMARY OF ARGUMENT

1. The district court correctly held that the Burkes have not satisfied the requirements to intervene as of right under Federal Rule of Civil Procedure 24(a). That rule requires a would-be intervenor to identify a specific, legally-protectable interest in the subject matter of the action and show that his or her ability to protect that interest will be impaired absent intervention. The would-be intervenor must

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also show that the interest is not adequately protected by existing parties, and that the motion to intervene is timely. The Burkes had the burden of establishing all of these requirements, and they established none of them.

First, the Burkes have not identified any direct, substantial, legally- protectable interest in the CFPB’s action against Ocwen. The Burkes state that they seek to intervene to protect their interest in “their homestead.” But they do not explain how intervention will protect their homestead, nor do they explain why they cannot or could not protect their homestead in their foreclosure action or in their suit against Ocwen. The Burkes also seek to intervene to “help homeowners in distress nationwide,” but this interest, too, is not sufficient to warrant intervention, because it is not a direct interest of the Burkes. Finally, the Burkes argue that they could make a “material impact” on this case, because they have facts relevant to the CFPB’s claims. But while this may be an argument that they could be witnesses, it is not a valid argument for intervention.

Second, the Burkes have not shown that the CFPB will not adequately represent any interest they may have in this case. There is a presumption of adequate representation where, as here, an existing party seeks the same objective as the proposed intervenors. This court and other courts have repeatedly held that where a government agency sues to enforce federal law, that agency adequately represents the interests of the constituents the law is intended to protect. The

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Burkes have not rebutted that presumption here, and the Court should ignore their unsupported allegations that the CFPB is incapable of enforcing federal law.

Third, the Burkes have not met their burden of showing that their motion is timely. They argue that they filed their motion “shortly” after learning of their interest in this action, but they do not define “shortly,” nor do they make any argument that their belated notice of the case was reasonable. Instead, they fault the district court for moving slowly on their motion, but the district court’s delay is irrelevant to the timeliness inquiry under Rule 24.

1. The district court did not clearly abuse its discretion in refusing to permit the Burkes to intervene under Rule 24(b), which requires a proposed intervenor to establish both that the claims it seeks to assert share a common question of law or fact with the claims in the main action, and that the motion is timely, and which also requires a court to take into account any undue delay or prejudice to the nonmoving parties from intervention. The district court correctly identified that standard, and reasonably applied it to this case to hold that the Burkes had not identified any common question of law or fact, and that intervention would unduly prejudice Ocwen and the CFPB by expanding the scope of the case to include new subject matter twenty months after the CFPB filed its complaint and more than a year into

Nor did the district court abuse its discretion in denying the Burkes’ belated

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request, in their motion for reconsideration, to intervene for the purposes of obtaining information that might help them in their separate suit against Ocwen. The argument is waived and, in any event, the district court correctly held that obtaining discovery from a party is not a proper use of intervention.

STANDARD OF REVIEW

This Court reviews the district court’s denial of the Burkes’ motion to intervene as of right under Rule 24(a) de novo. Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir. 1996). Subsidiary findings of fact are reviewed for clear error. Clark v. Putnam Cnty., 168 F.3d 458, 461 (11th Cir. 1999).

The district court’s denial of the Burkes’ motion for permissive intervention under Rule 24(b) is reviewed for “clear abuse of discretion.” Purcell, 85 F.3d at 1513 (internal quotations omitted). The Court “must affirm under the abuse of discretion standard unless [it] at least determine[s] that the district court has made a clear error of judgment, or has applied an incorrect legal standard.” Id. (internal quotations omitted). “[T]he abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment.” Id. (internal quotations omitted).

ARGUMENT

The District Court Correctly Held that the Burkes Have Not Satisfied the Requirements for Intervention as of Right.

Federal Rule of Civil Procedure 24(a) permits a party to intervene as of right

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under the following circumstances:

On timely motion, the court must permit anyone to intervene who . . . claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant’s ability to protect its interest, unless existing parties adequately represent that interest.

Fed. R. Civ. P. 24(a)(2).5 This Court has interpreted this rule to require a party seeking intervention of right to demonstrate that:

(1) his application to intervene is timely; (2) he has an interest relating to the property or transaction which is the subject of the action; (3) he is so situated that disposition of the action, as a practical matter, may impede or impair his ability to protect that interest; and (4) his interest is represented inadequately by the existing parties to the suit.

Purcell, 85 F.3d at 1512 (quoting Chiles, 865 F.2d at 1213). The Burkes have the burden to establish all four requirements. Id. Intervention must be denied if any of these requirements is not satisfied, id., and the Burkes satisfy none of them.

A.               The Burkes Have Failed To Identify a Direct, Substantial, and Legally-Protectable Interest That Will Be Impaired If They Do Not Intervene.

The Burkes identify three supposed interests in this case: (1) to “help save their own homestead from wrongful foreclosure”; (2) to “help homeowners in distress nationwide”; and (3) to “make a material impact on [this] case.” Br. at 26

5 Rule 24(a)(1) allows for intervention as of right where a party “is given an unconditional right to intervene by a federal statute.” The Burkes have never asserted that they have such a right, nor could they.

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(quotations omitted). None of these interests supports intervention here.

First, the Burkes have not and cannot show that they will be impaired in their ability to protect their home from foreclosure if they are not permitted to intervene in the CFPB’s action. The Burkes’ foreclosure action was initiated in 2011 and the relevant claims (and the only remaining claims) in this case are limited to conduct that occurred after 2014. See p. 3 & n. 3, supra. Moreover, the Burkes were party to a foreclosure action and a lawsuit against Ocwen. Their separate actions, in which they had the opportunity to dispute wrongful foreclosure and to assert claims against Ocwen, “demonstrate that th[eir] rights are not impaired by their exclusion from this action.” Meadowfield Apartments, Ltd. v.

United States, 261 F. App’x 195, 196 n.2 (11th Cir. 2008) (tenants not entitled to intervene in quiet title action between housing development and the Departure of Agriculture where intervenors had filed a separate action against the Department of Agriculture to protect their rights).

The Burkes’ second stated interest—to “help homeowners in distress nationwide”—also does not justify their intervention in this case. To intervene as a matter of right, a party must demonstrate that it has a “direct, substantial, and legally protectable” interest in the subject matter of the litigation. Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc., 425 F.3d 1308, 1311 (11th Cir. 2005) (quotations and citation omitted). The interest of homeowners nationwide is not a direct,

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substantial, and legally protectable interest of the Burkes. Moreover, as explained infra at pp. 14-17, the CFPB will adequately protect the interest any homeowners nationwide have in this action. The Burkes rely on CFPB v. The National Collegiate Master Student Trust, No. 17-1323 (D. Del.), suggesting (at 29-30) that the case stands for the general rule that homeowners may intervene in CFPB enforcement actions. Not so; the court in that case permitted various banks to intervene in the CFPB’s action against Delaware statutory trusts because each of the banks was a party to a trust agreement that would be impacted by the CFPB’s proposed consent judgment. See id., Dkt. No. 95. The Burkes make no argument that a decision in this case would impact any relationship they have with Ocwen.

The Burkes’ third stated reason for intervention—to “make a material impact on” this case—also does not justify intervention as of right.  Br. at 26.                    The Burkes argue they are “seasoned foreclosure veterans” and can provide “direct facts, evidence and an experienced viewpoint to this case.” Id. at 24, 26.  But while, at best, this may be an argument that the Burkes could be witnesses in this case, it does not establish that they have the right to intervene. Rule 24(a) and this Court’s case law require them to identify a legally-protectable interest in the subject matter of the action, and to show that their ability to protect that interest will be impaired if they are not permitted to intervene. Purcell, 85 F.3d at 1512; Mt. Hawley Ins. Co., 425 F.3d at 1311; Fed. R. Civ. Proc. 24(a). They have failed

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to do so, and for this reason alone this Court should affirm the district court’s decision denying their motion to intervene as of right.

B.                Under Eleventh Circuit Law, the CFPB Is an Adequate Representative of Any Interest the Burkes Have in This Action.

The Burkes’ motion was properly denied for the independent reason that, to the extent the Burkes do have an interest in this case as homeowners (and for the reasons already given, they do not), the CFPB—the government entity seeking to represent the public’s interests—is presumed to adequately represent that interest, and the Burkes have offered no evidence to rebut that presumption. See Appx 8 (ECF 375), at 4.

This Court has held that “[t]here is a presumption of adequate representation” for the purposes of Rule 24(a) “where an existing party seeks the same objectives as the intervenors.” Stone v. First Union Corp., 371 F.3d 1305, 1311 (11th Cir. 2004). The presumption of adequate representation is particularly strong “if the named party is a government entity that represents interests common to the public.” FTC v. Johnson, 800 F.3d 448, 452 (8th Cir. 2015) (quotations omitted). In Johnson, the Federal Trade Commission (“FTC”) sued BF Labs, Inc., for unfair and deceptive acts in marketing and selling Bitcoin mining machines.

Id. at 450. The FTC sought injunctive and other relief “necessary to redress injury

to consumers,” including “rescission or reformation of contracts, restitution [and] the refund of moneys paid.” Id. at 451. Two consumers who had filed a class

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action against BF Labs for deceptive and unconscionable business practices moved to intervene in the action on behalf of a class of consumers. Id. at 450-51. The district court denied the motion, and the Eighth Circuit affirmed. The court held that the FTC would adequately protect the consumers’ interest because the two parties shared the same objective: the FTC’s statutory purpose was to prevent corporations from using unfair or deceptive practices in commerce, and the FTC sought to do just that in the case against BF Labs, by seeking relief for consumers for the same deceptive acts and practices alleged by the proposed intervenors. Id. at 452.

The same reasoning applies here. The Burkes state that they seek to protect their interest as homeowners, and the interests of homeowners generally, from Ocwen’s alleged noncompliant servicing practices. But this is the very interest the CFPB seeks to protect, as the agency charged with protecting consumers (including homeowners) from practices that violate federal consumer protection laws. See 12 U.S.C. § 5491(a). Like the FTC in Johnson, the CFPB in this case seeks relief for consumers like the Burkes, including injunctive relief and “rescission or reform of contracts, refund of moneys; restitution; and payment of damages or other monetary relief.” SAppx 1, at 92. Accordingly, the CFPB can adequately represent homeowners’ interest in this case, including any interest the Burkes may have as homeowners.

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Johnson is not an outlier. Courts (including this Court) regularly hold that a plaintiff may not intervene in a case brought by the federal government where the proposed intervenor is a part of the very class of people that the government aims to protect, because in those circumstances the government is an adequate representative of the proposed intervenor’s interest. See, e.g., United States v.

Territory of Virgin Islands, 748 F.3d 514, 523 (3d Cir. 2014) (the United States adequately represented an inmate’s interests in challenging prison conditions on Eighth Amendment grounds because the inmate was “the exact constituent the United States is attempting to protect”); United States v. City of Miami, 278 F.3d 1174, 1179 (11th Cir. 2002) (the United States adequately represented the Miami Community Police Benevolent Association where the two shared the objective to end employment discrimination against minority groups); Athens Lumber Co. v. FEC, 690 F.2d 1364, 1366-67 (11th Cir. 1982) (the FEC adequately represented a union where both groups sought to uphold the constitutionality of a provision of the Federal Elections Campaign Act).

To overcome the presumption that the CFPB will adequately represent their interests, the Burkes must identify “some evidence to the contrary.” Stone, 371 F.3d at 1311. The Burkes have not done so. They argue that the CFPB cannot represent their interests if it “is deemed unconstitutional and the Dodd-Frank Act is stricken.” Br. at 19 n.20. While Ocwen agrees with the Burkes that the CFPB is

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unconstitutional, the district court has twice rejected the argument and the CFPB continues to prosecute this case. SAppx A, at 51 (ECF 452), 57 (ECF 521).

Further, if the Supreme Court does rule that the CFPB is unconstitutional and the Dodd-Frank Act is stricken, the CFPB’s case against Ocwen will be dismissed and the Burkes may continue to pursue their case against Ocwen in Texas.

The Burkes also argue that the CFPB is biased, as evidenced by its decision to join Ocwen in opposing the Burkes’ motion to intervene. Br. at 23, 35. But parties regularly jointly oppose intervention; this does not mean that they agree on the merits, or that the CFPB will not zealously litigate its allegations against Ocwen.

Finally, the Burkes make a host of attacks on the CFPB’s ability to protect consumers; they allege that the CFPB has no “bite,” id. at 44, that the CFPB has “repelled the very homeowners [it] claim[s] to protect,” id. at 47, and the CFPB “has failed homeowners continually since the 2008 Financial Crisis,” id. The Court should ignore these unsupported allegations, which are particularly implausible in the context of this case, where the CFPB has brought claims against Ocwen for alleged violations of federal law.6

6 Even if the Burkes were to rebut the presumption that CFPB is an adequate representative of their interests (and they have not), they still cannot show that the CFPB is an inadequate representative of their interests, because (1) they have identified no evidence that the CFPB is colluding with Ocwen; (2) the CFPB’s

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C.               The Burkes Have Not Met Their Burden of Establishing That Their Application To Intervene Was Timely.

The Burkes also have not shown that the motion to intervene was timely.

Their failure to do so provides a third basis to affirm the district court’s decision.7 The Burkes filed their motion to intervene more than twenty months after

this case began, and more than a year into discovery. In an attempt to explain their delay, the Burkes state in conclusory fashion that the “time was very short that [they] knew of their interest in this case.” Br. at 51. But they do not say how “short,” nor do they explain why they learned of it twenty months after it began.

This matters, because one of the relevant considerations in determining whether an application to intervene is timely is the length of time during which the would-be intervenor “knew or reasonably should have known of their interest in the case before moving to intervene,” Chiles, 865 F.2d at 1213. The Burkes make no argument that it was reasonable that they learned of the case when they did, and provide no facts from which the court could conclude that it was reasonable for

interest is certainly not adverse to the Burkes’ interest; and (3) there is no indication that the CFPB has failed in fulfilling its duties in this case. See Stone, 371 F.3d at 1311 (listing the relevant considerations if the presumption of adequacy is rebutted).

7 Although the district court did not reach the issue of timeliness, this Court can affirm on any ground supported by the record, regardless of whether that ground was relied on or considered below. Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1256 (11th Cir. 2001).

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them to intervene twenty months after the case began. And there is good reason to conclude they should have learned of the case earlier; the lawsuit was extensively covered in the press and on the CFPB’s website.8

Instead, the Burkes make two arguments; neither has merit. First, they state that they filed their motion to intervene “only a month or so after the entry of judgment of foreclosure in their own Texas case.” Br. at 49. But they do not explain why they could not move to intervene in this case before the judgment of foreclosure in their Texas case, which began in 2011.  See p. 5, supra.                                                  Second, they fault the district court for not acting quickly enough on their motion. Br. at

49. But the pertinent question is not whether the district court’s decision was timely, but whether the Burkes’ motion was timely, and the district court correctly focused on the latter. See Appx 8 (ECF 375), at 5; Appx 10 (ECF 411), at 3.

III.           The District Court Did Not Clearly Abuse Its Discretion When it Denied the Burkes Permissive Intervention Under Rule 24(b).

1. The District Court Identified the Correct Standard, and Applied it Reasonably to this

This Court has held that if there is no right to intervene under Rule 24(a), “it

8 See CFPB Newsroom, “CFPB Sues Ocwen for Failing Borrowers Throughout Mortgage Servicing Process” (April 20, 2017), available at https://www.consumerfinance.gov/about-us/newsroom/cfpb-sues-ocwen-failing- borrowers-throughout-mortgage-servicing-process/; see also, e.g., Yuka Hayashi, “CFPB Sues Mortgage Servicer Ocwen, Alleging Botched Services,” The Wall Street Journal (Apr. 20, 2017), available at https://www.wsj.com/articles/cfpb- sues-mortgage-servicer-ocwen-alleging-it-botched-basic-services-1492713773.

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is wholly discretionary with the court whether to allow intervention under Rule 24(b).” Purcell, 85 F.3d at 1513 (quotations omitted). Reversal is warranted only where the district court “applied an incorrect legal standard” or committed a “clear error of judgment.” Id. (quoting SunAmerica Corp. v. Sun Life Assurance Co. of Canada, 77 F.3d 1325, 1333 (11th Cir. 1996)). The Burkes make no argument that the district court did either; instead, they contend that they have satisfied the requirements for permissive intervention. See Br. at 48-55. But this Court “does not address the matter in the first instance.” Purcell, 85 F.3d at 1513. For this reason alone, the Court should affirm the district court’s decision denying permissive intervention.

In any event, there was no abuse of discretion here. The district court began by correctly identifying the legal standard: Federal Rule of Civil Procedure 24(b), which states that “[o]n timely motion, the court may permit anyone to intervene who . . . has a claim or defense that shares with the main action a common question of law or fact.” Rule 24(b)(1)(B). Appx 8 (ECF 375), at 4. The Rule requires a party seeking permissive intervention to demonstrate both (1) that his claim or defense and the main action have a question of law or fact in common; and (2) that the motion is timely. Chiles, 865 F.2d at 1213. The district court also correctly noted that a court must also consider “whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.

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24(b)(3); accord Meek v. Metropolitan Dade Cnty., 985 F.2d 1471, 1477 (11th Cir. 1993) (motion for permissive intervention is “guided by considerations of undue delay or prejudice to the adjudication of the rights of existing parties”), abrogated on other grounds, Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324 (11th Cir. 2007); Appx 8 (ECF 375), at 4.

The district court’s application of these requirements to the facts of this case was reasonable. The district court correctly determined (Appx 8 (ECF 375), at 4) that the Burkes nowhere identified any common question of law or fact between the CFPB’s enforcement action and any claims they sought to assert—in fact, they did not even identify any claim they would assert upon intervention. The Burkes argue on appeal that there is a common question of law and fact because they “have ongoing dealings with Ocwen,” Br. at 48, but this is a non-starter, because it identifies no potential claims against Ocwen, let alone any overlap between any claims and the CFPB’s claims.9

Second, and for the reasons already given above, at pp. 18-19, the Burkes have not established that their motion to intervene was timely, and the district court committed no abuse of discretion in determining that, given the advanced stage of

9 Nor could the Burkes identify any overlap. As already explained, the Burkes’ foreclosure action, which appears to be the basis of any claim they may seek to assert in this case, was initiated in 2011, and all the relevant and remaining claims in this case are limited to conduct that occurred after 2014.  See p. 3 & n.3, supra.

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the litigation, permitting the Burkes to intervene would prejudice the parties. See Appx 8 (ECF 375), at 4-5. The Burkes’ motion and supporting documents (and now their brief on appeal) contained a host of allegations that have nothing in common with the claims in this case—claims regarding Steven Mnuchin, the Texas Consumer Task Force, and MERS, for example, see p. 5, supra—and which would require further discovery and drastically expand the scope of the litigation.

B.                The Burkes Cannot Intervene to Participate in Discovery.

The Burkes argue that they should be permitted to intervene for the purpose of obtaining information from Ocwen to use in their lawsuit against Ocwen in Texas. See, e.g., Br. at 33-34 (arguing that intervention is warranted to “obtain[] information from Ocwen, pertaining to regular accounting and confirmation of the fact they actually are ‘authorized’ mortgage servicers in the Applicants [sic] own mortgage”); id. at 46 (“the Applicants wish to obtain facts and access documents which would help their current and ongoing Appellate case in Texas”). That argument fails, for at least two reasons.

First, the Burkes never raised this argument in their motion; they raised it in their motion for reconsideration. This is too late, because a motion for reconsideration is not a vehicle to “present the case under a new legal theory.” Mincey v. Head, 206 F.3d 1106, 1137 n. 69 (11th Cir. 2000); see also Michael Linet, Inc. v. Village of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005)

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(motion for reconsideration may not be used to “raise argument . . . that could have been raised prior to the entry of judgment”).

Second, as the district court correctly held, see Appx 10 (411), at 2-3, obtaining discovery for use in a different suit is not a proper use of Rule 24. The cases on which the Burkes rely, Flynt v. Lombardi, 782 F.3d 963 (8th Cir. 2015), and Pansy v. Borough of Stroudsburg, 23 F.3d 772 (3d Cir. 1994), are distinguishable. Those cases did not involve a request by a plaintiff in one lawsuit to intervene in a separate lawsuit against the same defendant in order to obtain information from the defendant for use in the first lawsuit. Rather, Flynt and Pansy involved requests by the press to intervene to directly challenge the sealing of specific judicial records for the purpose of public access to information. The Burkes make no argument that any specific judicial records in this case were improperly sealed; rather, they appear to be requesting to wade through discovery—and even to conduct discovery themselves—in search of documents that may help them in their own suit. See Appx 9 (408), at 3-4 (seeking intervention to “obtain facts and access to documents which would help their current and ongoing Appellate case in Texas . . . , [and to] seek[] answers to questions which have not been adequately addressed by CFPB”). The Burkes provide no explanation for why they could not seek this same material, or ask the same questions, in their own suit. In these circumstances, the district court did not

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clearly abuse its discretion in denying the Burkes’ motion to intervene. Cf. Comm’r, Ala. Dep’t of Corrections v. Advance Local Media, LLC, 918 F.3d 1161, 1167 (11th 2019) (“Courts generally should not permit public access to discovery materials that are not filed with substantive motions because discovery is essentially a private process meant to assist trial preparation.”) (quotations omitted).

CONCLUSION

The order of the district court denying Appellants’ motion to intervene should be affirmed.

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Respectfully Submitted,

Bridget Ann Berry
Andrew Stuart Wein
GREENBERG TRAURIG, PA
777 S Flagler Dr. Suite 300E
West Palm Beach, FL 33401
Tel.: +1 561-650-7900

Matthew P. Previn
BUCKLEY, LLP
1133 Avenue of the Americas Suite 3100
New York, NY 10036

March 11, 2020

s/Sabrina M. Rose-Smith
Sabrina M. Rose-Smith

Thomas M. Hefferon
Matthew Riffee
Matthew S. Sheldon
Tierney E. Smith
Kyle Tayman
GOODWIN PROCTER LLP
1900 N Street,
NW Washington,
D.C. 20036
Tel.: +1 202 346 4000

Catalina E. Aquero
Edwina B. Clarke
Laura S. Craven
GOODWIN PROCTER LLP
100 Northern Avenue
Boston, MA 02210
Tel.: +1 617 570 1000

Laura A. Stoll
GOODWIN PROCTER LLP
601 Figueroa St. 41st Floor
Los Angeles, CA 90017
Tel.: +1 213 426 2500

Amanda B. Protess
GOODWIN PROCTER LLP
620 8th Avenue
New York, NY 10018-1618
Tel.: +1 212 813 8800
Counsel for Defendants-Appellees

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CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation of Federal Rule of Appellate Procedure 27(d)(2)(A). This brief contains 5,906 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f).

This brief complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type style requirements of Federal Rule of Appellate Procedure 32(a)(6). This brief has been prepared in a proportionally spaced typeface, 14-point Times New Roman font, using Microsoft Word 2010.

/s/ Sabrina M. Rose-Smith
Sabrina M. Rose-Smith

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CERTIFICATE OF SERVICE

I, Sabrina M. Rose-Smith, hereby certify that on March 11, 2020, I electronically transmitted the foregoing document to the Clerk’s Office using the CM/ECF System. I certify that all participants in this case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/ Sabrina M. Rose-Smith
Sabrina M. Rose-Smith

?Intervenors appeal to CA11 after Judge Marra denies intervention as a right or permissively. Intervenors argue if permissively, they should be allowed access to SEALED docs. Judge Jill Pryor denies Motion to Disqualify. Two weeks later SEALS docs. ? @VolokhC #appellatetwitter pic.twitter.com/YycCyyIpDX

— LawsInTexas (@lawsintexasusa) March 7, 2020

What is the Noah’s Ark Doctrine? @TheFlaBar @flcourts @GACourts @blaw @ReutersLegal @MotherJones @HuffPostPol @Ocwen_Help @CFPB @CFPB_Watch @illinoiscourts @SupremeCourt_TX @JudgeDillard @atlblog @HoustonChron @TexasLawyer @cnn @ABCPolitics @SCOTUSblog https://t.co/ft6GU0pYwS pic.twitter.com/dgpO2eFofW

— LawsInTexas (@lawsintexasusa) March 7, 2020