Appellate Circuit

In Tandem, “Opposing” Counsels”, namely the CFPB, a ‘Consumer Watchdog’ and Ocwen, a Non-Bank, Object to Consumers Constitutional Rights

Burke v Ocwen and CFPB, that’s right, the consumer watchdog objects to the consumers.

LIT COMMENTARY

Hot off the press, March 11, 2020, the CFPB and Ocwen join together to object to consumers/homeowners intervention at the Eleventh Circuit Court of Appeals. This page will be updated frequently.

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

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT

Pursuant to Eleventh Circuit Rule 26.1-1, I hereby certify that, to my knowledge, the following is a list of all persons and entities with an interest in the outcome of this particular case or appeal:

  1. Alexis, Anthony, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  2. Alvarez, Joaquin, Attorney for Consolidated Plaintiff Office of Financial Regulation, State of Florida, Division of Consumer Finance
  3. Azuero, Catalina E., Attorney for Defendants-Appellees Ocwen Financial Corporation, a Florida corporation, et
  4. Baez, Tianna E., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  5. Barrett, Bernard J., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  6. Berry, Bridget A., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  7. Bondi, Pam, Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida
  8. Brenowitz, Stephanie C., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  9. Bressler, Steven Y., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  10. Buckley LLP, Law Firm for Defendants-Appellees Ocwen Financial Corporation, et
  11. Burke, Joanna, Pro Se Putative Intervenor-Appellant
  12. Burke, John, Pro Se Putative Intervenor-Appellant
  13. Cammarata, Anthony, Attorney for Consolidated Plaintiff Office of Financial Regulation, State of Florida, Division of Consumer Finance
  14. Chiu, Shirley T., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  15. Cohen, Adam H., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  16. Coleman, John R., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  17. Consumer Financial Protection Bureau, Plaintiff-Appellee
  18. Craven, Laura S., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  19. DeMille-Wagman, Lawrence, Attorney for Plaintiff- Appellee Consumer Financial Protection Bureau
  20. Desai, Atur R., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  21. Fransen, Scott R., Attorney for Consolidated Plaintiff Office of Financial Regulation, State of Florida, Division of Consumer Finance
  22. Goodwin Procter LLP, Law Firm for Defendants-Appellees Ocwen Financial Corporation, et
  23. Granai, Sasha F., Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida,
  24. Greenburg Traurig, LLP, Law Firm for Defendants- Appellees Ocwen Financial Corporation, et
  25. Healey, Jean M., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  26. Hefferon, Thomas M., Attorney for Defendant-Appellees Ocwen Financial Corporation, et
  27. Kelly, Erin M., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  28. Marra, Kenneth A., United States District Judge
  29. Matthewman, William, United States Magistrate Judge
  30. McLeod, Mary, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  31. Moody, Ashley, Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida
  32. Nodler, Gregory R., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  33. Ocwen Financial Corporation, a Florida corporation, Defendant- Appellee
  34. Ocwen Loan Servicing LLC, a Delaware limited liability company, Defendant-Appellee
  35. Ocwen Mortgage Servicing Inc., a U.S. Virgin Islands corporation, Defendant-Appellee
  36. Office of Attorney General, State of Florida, Department of Legal Affairs, Consolidated Plaintiff
  37. Office of Financial Regulation, State of Florida, Division of Consumer Finance, Consolidated Plaintiff
  38. O’Malley, Gabriel, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  39. Petersen, Cara, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  40. Pinder, Jennifer H., Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida,
  41. Posner, Michael, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  42. Previn, Matthew P., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  43. Protess, Amanda B., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  44. Riffee, Matthew L., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  45. Roberson, Amanda C., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  46. Rose-Smith, Sabrina M., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  47. Savage, James J., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  48. Sheldon, Matthew S., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  49. Singlemann, Jan E., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  50. Sugarman, James, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  51. Smith, Tierney E., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  52. Stoll, Laura, Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  53. Tayman, W. Kyle, Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  54. Ward, Thomas G., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  55. Wein, Andrew S., Attorney for Defendants-Appellees Ocwen Financial Corporation, et
  56. Wells, John C., Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  57. Wilkinson, Miriam, Attorney for Consolidated Plaintiff Office of Financial Regulation, State of Florida, Division of Consumer Finance
  58. Wilson, Jack Douglas, Attorney for Plaintiff-Appellee Consumer Financial Protection Bureau
  59. Winship, Blaine H., Attorney for Consolidated Plaintiff Office of the Attorney General, State of Florida

/s/ Bernard J. Barrett, Jr.    Bernard J. Barrett, Jr.

STATEMENT REGARDING ORAL ARGUMENT

The Consumer Financial Protection Bureau respectfully submits that oral argument is not necessary. If the Court determines that oral argument will facilitate its deliberations, however, the Bureau stands ready to present argument.

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT……………………………………………………………. ii

STATEMENT REGARDING ORAL ARGUMENT………………………….. viii
TABLE OF CONTENTS…………………………………………………………………… ix
TABLE OF CITATIONS…………………………………………………………………… xi
JURISDICTIONAL STATEMENT…………………………………………………….. 1
STATEMENT OF ISSUES………………………………………………………………… 2
STATEMENT OF THE CASE……………………………………………………………. 3

  1. The Bureau’s Civil Action To Enforce Federal Consumer Financial Law 3
  2. Appellants’ Motion to Intervene………………………………………………. 5

STANDARD OF REVIEW…………………………………………………………………. 8
SUMMARY OF ARGUMENT……………………………………………………………. 9
ARGUMENT…………………………………………………………………………………….. 9

  1. The Appellants’ Motion Does Not Establish A-any of the Prerequisites for Intervention as a Matter of Right Under Rule 24(a)(2)……………… 9
    1. Appellants Have Not Established a Sufficient Interest in the Transactions that Are the Subject of the Bureau’s Action….. 10
    2. The Appellants’ Interests Are Not at Risk of Being Impaired and May Be Pursued Without Their Intervention in this Action………. 12
    3. Appellants’ Interests in this Litigation, If Any, Are Adequately Represented by the Bureau……………………………………………….. 13
  2. The District Court Did Not Abuse its Discretion in Denying the Motion for Permissive Intervention……………………………………………………. 15
    1. The District Court Acted Within its Discretion in Denying Permissive Intervention When Appellants Can Assert Their Rights Through Separate ………………………………………………………………. 15
    2. Appellants Have Not Identified a Common Question of Law or Fact 16
    3. Intervention Would Unduly Prejudice the Rights of the Other Parties 16

CONCLUSION……………………………………………………………………………….. 22

Statutes

12 U.S.C. § 2605……………………………………………………………………………….. 4
12 U.S.C. § 2617……………………………………………………………………………….. 4
12 U.S.C. § 4902(b)……………………………………………………………………………. 4
12 U.S.C. § 5302……………………………………………………………………………… 19
12 U.S.C. § 5531……………………………………………………………………………….. 4
12 U.S.C. § 5536……………………………………………………………………………….. 4
15 U.S.C. § 1604(a)……………………………………………………………………………. 4
15 U.S.C. § 1692e(2)(a)………………………………………………………………………. 4
15 U.S.C. § 1692e(10)………………………………………………………………………… 4
15 U.S.C. § 1692f………………………………………………………………………………. 4
31 U.S.C. § 3730……………………………………………………………………………… 20

Rules

Fed. R. Civ. P. 24(a)…………………………………………………………………………… 1
Fed. R. Civ. P. 24(a)(2)……………………………………………………………… passim
Fed. R. Civ. P. 24(b)……………………………………………………………………. 1, 2, 8

Regulations

12 C.F.R. § 1024………………………………………………………………………………… 5
12 C.F.R. § 1026………………………………………………………………………………… 5

TABLE OF CITATIONS

 
Cases
Anderson Columbia Envtl., Inc. v. United States,
42 Fed. Cl. 880 (1999)……………………………………………………………………. 12
Baker v. Wade,
743 F.2d 236 (5th Cir. 1984)………………………………………………………….. 14
Bush v. Viterna,
740 F.2d 350 (5th Cir.1984)…………………………………………………………… 14
Chiles v. Thornburgh,
865 F.2d 1197 (11th Cir. 1989)………………………………………………………. 10
Donaldson v. United States,
400 U.S. 517 (1971)………………………………………………………………….. 10, 11
Flynt v. Lombardi,
782 F.3d 963 (8th Cir. 2015)………………………………………………………….. 20
Fox v. Tyson Foods, Inc.,
519 F.3d 1298 (11th Cir. 2008)…………………………………………. 1, 8, 10, 15
Huff v. Comm’r of IRS,
743 F.3d 790 (11th Cir. 2014)………………………………………………………… 10
Hughes v. Stryker Corp.,
423 F. App’x 878 (11th Cir. 2011)………………………………………………….. 19
Int’l Tank Terminals, Ltd. v. M/V Acadia Forest,
579 F.2d 964 (5th Cir.1978)…………………………………………………………… 14
Pansy v. Borough of Stroudsburg,
23 F.3d 772 (3d Cir. 1994)……………………………………………………………… 21
Perry v. Proposition 8 Official Proponents,
587 F.3d 947 (9th Cir. 2009)………………………………………………………….. 17
Sharpe ex rel. United States v. Americare Ambulance,
No 8:13-cv-1171-T-33AEP, 2017 WL 2986258
(M.D. Fla. July 13, 2017)……………………………………………………………….. 20
Stallworth v. Monsanto Co.,
558 F.2d 257 (5th Cir. 1977)…………………………………………………….. 1, 5, 7
Stone v. First Union Corp.,
371 F.3d 1305 (11th Cir. 2004)………………………………………………………. 10
Tech. Training Assocs., Inc. v. Buccaneers Ltd. P’ship,
874 F.3d 692 (11th Cir. 2017)………………………………………………………. 1, 8
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)………………………………………………………………… 21
United States v. Allegheny-Ludlum Indus., Inc.,
517 F.2d 826 (5th Cir. 1975)………………………………………………………….. 15
United States v. Oakely,
744 F.2d 1553 (11th Cir. 1984)………………………………………………………. 19
Worlds v. Dep’t. of Health & Rehab. Servs.,
929 F.2d 591 (11th Cir. 1991)…………………………………………………… 12, 15

Pansy v. Borough of Stroudsburg 23 F.3d 772 (3d Cir. 1994)

“Holding that a Settlement Agreement never filed with, interpreted by, or enforced in the district court is not a judicial record accessible under the right of access doctrine.”

Marshall v. Planz 347 F. Supp. 2d 1198 (M.D. Ala. 2004)

“Finding that the issuing court “has the power to modify, and even vacate, its protective orders, even after final judgment as long as the protective orders are outstanding and thus enforceable.””

Edwards v. City of Houston 78 F.3d 983 (5th Cir. 1996)

“Holding that interest of police officers in having equal access to a promotion system was sufficient to justify intervention as of right by officers’ associations and unions to contest entry of a consent decree in an employment discrimination case against the City of Houston requiring a series of remedial promotions for members of certain minority groups.”

Chiles v. Thornburgh 865 F.2d 1197 (11th Cir. 1989)

“Holding that stare decisis could practically disadvantage a litigant, a requirement under permissive intervention.”

United States v. Texas Educ. Agency (Lubbock Independent School Dist.) 138 F.R.D. 503 (N.D. Tex. 1991)

“Denying intervention where it would require party to incur additional legal fees.”

Helgeland v. Wisconsin 2008 WI 9 (Wis. 2008)

“Denying motion to intervene based on argument that attorney general would not adequately defend the law.”

Retina-X Studios, LLC v. Advaa, LLC 303 F.R.D. 642 (M.D. Fla. 2014)

“Holding that a meritorious defense is merely a good defense at law, without regard of likelihood of success.”

Fox v. Tyson Foods 519 F.3d 1298 (11th Cir. 2008)

“Denying intervention by right where the policy being challenged was not company-wide but determined by local managers.”

Resort Timeshare Resales. Inc. v. Stuart 764 F. Supp. 1495 (S.D. Fla. 1991)

“Holding that lobbyist was not entitled to intervene when asserted interest in law was too nebulous to create “real party in interest” in litigation challenging constitutionality of state statute requiring timeshare sellers to obtain real estate licenses.”

Huff v. Comm’r 743 F.3d 790 (11th Cir. 2014)

“Allowing intervention by the USVI.”

Jones v. Caddo Parish School Bd. 704 F.2d 206 (5th Cir. 1983)

“In Jones, individuals opposed a 1981 consent order and later attempted to intervene prior to a 1987 hearing to determine whether a school system had attained unitary status.”

Altier v. Worley Catastrophe Response, LLC CIVIL ACTION NO. 11-241 c/w 11-242 (E.D. La. Jan. 18, 2012)

“Determining that the named plaintiffs in a state court class action did not represent the members of the putative class who had already elected to proceed with their FLSA claims in federal court and were represented by counsel in the FLSA case.”

United States v. Allegheny-Ludlum Industries 517 F.2d 826 (5th Cir. 1975)

“Holding that employee who freely settles an unliquidated demand with employer may not sue the same employer at a later date on the same cause of action.”

Baker v. Wade 743 F.2d 236 (5th Cir. 1985)

“Holding that Texas Attorney General is presumptively adequate representative of State’s interest when constitutionality of Texas law is challenged.”

Federal S L v. Falls Chase Sp. Taxing Dist 983 F.2d 211 (11th Cir. 1993)

“Describing a purchase and assumption.”

Bush v. Viterna 740 F.2d 350 (5th Cir. 1984)

“Holding that intervenion as of right requires that each of four requirements be met, including that application for intervention must be timely.”

Boca Raton Community Hosp., Inc. v. Tenet Healthcare Corp. 271 F.R.D. 530 (S.D. Fla. 2010)

“Finding that “[p]ermissive intervention is the proper method for a nonparty to seek modification of a protective order.””

Worlds v. Dept. of Health Rehab. Services 929 F.2d 591 (11th Cir. 1991)

“Concluding that there was “little likelihood that stare decisis would leave [the potential intervenor] in a worse position if he [were] not allowed to intervene” because the potential intervenor would have use of factual evidence in the future action he contemplated that was excluded from the action into which he sought to intervene.”

New Orleans Pub. Serv. v. United Gas Pipe Line 732 F.2d 452 (5th Cir. 1984)

“Holding that an economic interest alone is insufficient predicate for a Rule 24 intervention.”

Ballard v. Herzke 924 S.W.2d 652 (Tenn. 1996)

“Holding that the Public Records Act does not mandate disclosure of documents sealed by a protective order entered pursuant to the Tennessee Rules of Civil Procedure.”

QBE Insurance Corp. v. Austin Co. 23 So. 3d 1127 (Ala. 2009)

“Listing factors relevant to determining timeliness of a motion to intervene.”

Park Planning v. Washington Grove 968 A.2d 552 (Md. 2009)

“Holding that the federal authority decided under Fed.R.Civ.P. 24, which is analogous to Md. Rule 2-214, is consistent with the development of Maryland law on intervention, and adopting the federal standards for appellate review.”

State ex rel. Butterworth v. Jones Chemicals, Inc. (Florida) 148 F.R.D. 282 (M.D. Fla. 1993)

“Acknowledging that failure to protect a party’s reliance on a protective order would not only prejudice the confidentiality interests of that party, but also would undermine the effectiveness of protective orders in facilitating discovery.”

Edwards v. City of Houston 37 F.3d 1097 (5th Cir. 1994)

“Upholding consent decree where “[t]he remedial promotions are only directed to those positions where the discrimination occurred.”.”

Stallworth v. Monsanto Co. 558 F.2d 257 (5th Cir. 1977)

“Holding that the court had jurisdiction to review the denial of permissive intervention where the plaintiffs requested intervention based on right and permission.”

Stone v. First Union Corp. 371 F.3d 1305 (11th Cir. 2004)

“Finding inadequate representation because the defendant’s discriminatory conduct may have differed between plaintiff and intervenor.”

Jochims v. Isuzu Motors, Ltd. 148 F.R.D. 624 (S.D. Iowa 1993)

“Holding that “Rule 24 is to be construed liberally with all doubts resolved in favor of permitting intervention.”.”

Silver v. Babbitt 166 F.R.D. 418 (D. Ariz. 1994)

“Denying motion to intervene because the applicant’s interests were “too speculative . . . to justify intervention of right”.”

Meek v. Metropolitan Dade County 985 F.2d 1471 (11th Cir. 1993)
NEGATIVE TREATMENT – OVERRULED IN 2007 BY 11TH Cir.

“Holding that voters and organizations were entitled to intervene in action by African-American and Latino citizens against the county for violation of Voting Rights Act.”

American Ass’n of People with Disabilities v. Herrera 257 F.R.D. 236 (D.N.M. 2008)

“Holding that a state senator lacked a sufficient interest to justify intervention in an action concerning the constitutionality of a statute that he supported because he lacked a specific and particularized interest in defending the statute.”

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.

1 The Bureau’s Complaint alleges violations of Sections 1031 and 1036 of the Consumer Financial Protection Act, 12 U.S.C. §§ 5531, 5536; Sections 807(2)(a), 807(10), and 808 of the Fair Debt Collection 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 the regulations promulgated thereunder at Regulation X, 12 C.F.R. part 1024; Section 105(a) of the Truth in Lending Act, 15 U.S.C. 1604(a), and the regulations promulgated thereunder at Regulation Z, 12 C.F.R. part 1026; and Section 3(b) of the Homeowners Protection Act of 1998, 12 U.S.C. § 4902(b). See generally Compl., Doc. No. 1.

2 On November 1, 2019, after the litigation of the Motion to Intervene at issue in this appeal, the Bureau filed an amended complaint. Doc. No. 481.

3 The Florida plaintiffs have moved for additional discovery. See Docs Nos. 583, 588 and 594.

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

4 In any event, the district court did not grant Ocwen’s motion to dismiss on constitutional grounds; it denied it. Doc. No. 452 at 10-11 and Doc. No. 521 at 6-7. In the alternative, the district court held that, if the statutory provision authorizing the removal of the Director were held to be unconstitutional, the proper remedy would be to sever the provision which would allow the Bureau to continue to pursue this action. Id. at 7-8. See also Doc. No. 35 at 8-9 (citing 12 U.S.C. § 5302; and explaining that the for-cause removal provision is severable). That ruling is not on appeal, however, and Appellants have never raised a constitutional challenge themselves. Accordingly, no constitutional question is before this Court.

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

In determining whether a document is a judicial record, we evaluate the “relevance of the document’s specific contents to the nature of the proceeding” and the degree to which “access to the [document] would materially assist the public in understanding the issues before the … court, and in evaluating the fairness and integrity of the court’s proceedings.” Newsday LLC v. Cty. of Nassau, 730 F.3d 156, 166–67 (2d Cir.2013).

While “the mere filing of a paper or document with the court is insufficient to render that paper a judicial document subject to the right of public access,” Lugosch, 435 F.3d at 119 (internal quotation marks omitted), a document is judicial not only if the judge actually relied upon it, but also if “the judge should, have considered or relied upon [it], but did not.” Id. at 123 (internal quotation marks omitted). Such documents “are just as deserving of disclosure as those that actually entered into the judge’s decision.” Id. (internal quotation marks omitted).

Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139-40 (2d Cir. 2016)

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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Case: 19-13015      Date Filed: 03/11/2020      Page: 2 of 37

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

CERTIFICATE OF INTERESTED PERSONS

In compliance with Federal Rule of Appellate Procedure 26.1 and Eleventh Circuit Rule 26.1-1 – 26.1-3, Defendant-Appellees Ocwen Financial Corporation, Ocwen Loan Servicing, LLC, and Ocwen Mortgage Servicing, Inc., identify all attorneys, persons, associations of persons, firms, partnerships, or corporations that have an interest in the outcome of this case:

  1. Alvarez, Joaquin, Attorney for Consolidated Plaintiff Office of Financial Regulation, State of Florida, Division of Consumer Finance
  2. Azuero, Catalina E., Attorney for Defendants-Appellees
  3. Baez, Tianna E., Attorney for Plaintiff-Appellee
  4. Berry, Bridget A., Attorney for Defendants-Appellees
  5. Brenowitz, Stephanie C., Attorney for Plaintiff-Appellee
  6. Buckley LLP, Law Firm for Defendants-Appellees
  7. Burke, Joanna, Denied Pro Se Intervenor-Appellant
  8. Burke, John, Denied Pro Se Intervenor-Appellant
  9. Chiu, Shirley T., Attorney for Plaintiff-Appellee
  10. Clarke, Edwina B., Attorney for Defendants-Appellees
  11. Cohen, Adam H., Attorney for Plaintiff-Appellee
  12. Consumer Financial Protection Bureau, Plaintiff-Appellee
  13. Craven, Laura S., Attorney for Defendants-Appellees
  14. DeMille-Wagman, Lawrence, Attorney for Plaintiff-Appellee

Case: 19-13015      Date Filed: 03/11/2020      Page: 3 of 3

  1. Desai, Atur R., Attorney for Plaintiff-Appellee
  2. Fransen, Scott R., Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida, Department of Legal Affairs & Office of Financial Regulation, State of Florida, Division of Consumer Finance
  3. Goodwin Procter LLP, Law Firm for Defendants-Appellees
  4. Granai, Sarah F., Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida, Department of Legal Affairs & Office of Financial Regulation, State of Florida, Division of Consumer Finance
  5. Greenburg Traurig, LLP, Law Firm for Defendants-Appellees
  6. Healey, Jean M., Attorney for Plaintiff-Appellee
  7. Hefferon, Thomas M., Attorney for Defendant-Appellees
  8. Kelly, Erin M., Attorney for Plaintiff-Appellee
  9. Nodler, Gregory R., Attorney for Plaintiff-Appellee
  10. Ocwen Financial Corporation, a Florida corporation, Defendant- Appellee
  11. Ocwen Loan Servicing LLC, a Delaware limited liability company, Defendant-Appellee
  12. Ocwen Mortgage Servicing Inc., a U.S. Virgin Islands corporation, Defendant-Appellee
  13. Office of Attorney General, State of Florida, Department of Legal Affairs, Consolidated Plaintiff
  14. Office of Financial Regulation, State of Florida, Division of Consumer Finance, Consolidated Plaintiff
  15. Pinder, Jennifer H., Attorney for Consolidated Plaintiffs Office of the Attorney General, State of Florida, Department of Legal Affairs & Office of Financial Regulation, State of Florida, Division of

Case: 19-13015      Date Filed: 03/11/2020      Page: 4 of 37

  1. Consumer Finance
  2. Posner, Michael, Attorney for Plaintiff-Appellee
  3. Previn, Matthew P., Attorney for Defendants-Appellees
  4. Protess, Amanda B., Attorney for Defendants-Appellees
  5. Riffee, Matthew L., Attorney for Defendants-Appellees
  6. Roberson, Amanda C., Attorney for Plaintiff-Appellee
  7. Rose-Smith, Sabrina M., Attorney for Defendants-Appellees
  8. Sheldon, Matthew S., Attorney for Defendants-Appellees
  9. Singlemann, Jan E., Attorney for Plaintiff-Appellee
  10. Smith, Tierney E., Attorney for Defendants-Appellees
  11. Stoll, Laura, Attorney for Defendants-Appellees
  12. Tayman, W. Kyle, Attorney for Defendants-Appellees
  13. Wein, Andrew S., Attorney for Defendants-Appellees
  14. Wilson, James J. Savage, Attorney for Plaintiff-Appellee
  15. Winship, Blaine H., Attorney for Consolidated Plaintiff Office of the Attorney General, State of Florida, Department of Legal Affairs

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

Case: 19-13015      Date Filed: 03/11/2020      Page: 5 of 37

DISCLOSURE OF CORPORATE AFFILIATIONS AND OTHER INTERESTS

Pursuant to FRAP 26.1 and Local Rule 26.1, Ocwen Financial Corporation, Ocwen Loan Servicing, LLC, and Ocwen Mortgage Servicing, Inc., who are Appellees, make the following disclosure:

  1. Ocwen Financial Corporation is a publicly held corporation. Ocwen Financial Corporation does not have a parent corporation, and no publicly held corporation or other publicly held entity holds 10% or more of its
  2. Ocwen Loan Servicing, LLC, merged into PHH Mortgage Corporation on June 1, 2019. PHH Mortgage Corporation is successor by merger to Ocwen Loan Servicing, LLC. PHH Mortgage Corporation is a wholly-owned subsidiary of PHH Corporation. Ocwen Financial Corporation owns 100% of the common stock of PHH
  3. Ocwen Financial Corporation owns 100% of the common stock of Ocwen Mortgage Servicing,

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

Case: 19-13015      Date Filed: 03/11/2020      Page: 6 of 37

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is not necessary because the issues are straightforward and adequately presented in the parties’ briefing.

Case: 19-13015      Date Filed: 03/11/2020      Page: 7 of 37

TABLE OF CONTENTS

Page
INTRODUCTION……………………………………………………………………………….. 1
JURISDICTIONAL STATEMENT…………………………………………………………. 2
STATEMENT OF ISSUES ON APPEAL…………………………………………………. 2
STATEMENT OF THE CASE……………………………………………………………….. 3
IN APRIL 2017, THE CFPB BRINGS THIS ACTION AGAINST OCWEN FOR ALLEGED VIOLATIONS OF FEDERAL CONSUMER FINANCIAL LAWS…………………………………………………. 3
IN JANUARY 2019, JOANNA AND JOHN BURKE MOVE TO INTERVENE IN THE CFPB’S ENFORCEMENT ACTION…………………………………… 4
THE DISTRICT COURT DENIES THE MOTION TO INTERVENE…… 6
SUMMARY OF ARGUMENT………………………………………………………………. 7
STANDARD OF REVIEW………………………………………………………………….. 10
ARGUMENT……………………………………………………………………………………. 10
THE DISTRICT COURT CORRECTLY HELD THAT THE BURKES HAVE NOT SATISFIED THE REQUIREMENTS FOR
INTERVENTION AS OF RIGHT…………………………………………………. 10

  1. The Burkes Have Failed To Identify a Direct, Substantial, and Legally-Protectable Interest That Will Be Impaired If They Do

Not Intervene……………………………………………………………………. 11

  1. Under Eleventh Circuit Law, the CFPB Is an Adequate Representative of Any Interest the Burkes Have in This ………………………….. 14
  2. The Burkes Have Not Met Their Burden of Establishing That

Their Application To Intervene Was Timely……………………………. 18

  • THE DISTRICT COURT DID NOT CLEARLY ABUSE ITS DISCRETION WHEN IT DENIED THE BURKES PERMISSIVE

INTERVENTION UNDER RULE 24(B)………………………………………… 19

  1. The District Court Identified the Correct Standard, and Applied

it Reasonably to this Case……………………………………………………. 19

  1. The Burkes Cannot Intervene to Participate in ………….. 22

CONCLUSION………………………………………………………………………………….. 24

Statutes

12 U.S.C. §§ 2605, 2617…………………………………………………………………………. 3
12 U.S.C. § 4902(b)……………………………………………………………………………….. 3
12 U.S.C. § 5491(a)……………………………………………………………………………… 15
12 U.S.C. § 5565(a)……………………………………………………………………………….. 2
12 U.S.C. §§ 5531, 5536…………………………………………………………………………. 3
15 U.S.C. §§ 1604(a)……………………………………………………………………………… 3
15 U.S.C. §§ 1692e(2)(A), 1692e(10), and 1692f…………………………………………. 3

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Case: 19-13015      Date Filed: 03/11/2020      Page: 10 of 37

28 U.S.C. § 1331…………………………………………………………………………………… 2

Other Authorities

12 C.F.R. § 1024…………………………………………………………………………………… 3
12 C.F.R. § 1026…………………………………………………………………………………… 3
Federal Rule of Civil Procedure 24……………………………………………………. passim

CFPB Newsroom, “CFPB Sues Ocwen for Failing Borrowers
Throughout Mortgage Servicing Process” (April 20, 2017)……………………… 19
Yuka Hayashi, “CFPB Sues Mortgage Servicer Ocwen, Alleging
Botched Services,” The Wall Street Journal (Apr. 20, 2017)…………………….. 19

ACTIVE/102469349.4

Case: 19-13015      Date Filed: 03/11/2020      Page: 8 of 37

Cases

TABLE OF AUTHORITIES
Page(s)
Athens Lumber Co. v. FEC,
690 F.2d 1364 (11th Cir. 1982)………………………………………………………….. 16
Burke v. Ocwen Loan Servicing, LLC,
No. 4:18-cv-4544 (S.D. Tex.)………………………………………………………………. 6
CFPB v. The National Collegiate Master Student Trust,
No. 17-1323 (D. Del.)………………………………………………………………………. 13
Chiles v. Thornburgh,
865 F.2d 1197 (11th Cir. 1989)………………………………………………….. 2, 18, 20
Clark v. Putnam Cnty.,
168 F.3d 458 (11th Cir. 1999)……………………………………………………………. 10
Comm’r, Ala. Dep’t of Corrections v. Advance Local Media, LLC,
918 F.3d 1161 (11th 2019)………………………………………………………………… 24
Deutsche Bank Nat’l Trust Co. v. Burke,
4:11-cv-01658 (S.D. Tex.)………………………………………………………………….. 5
Deutsche Bank Nat’l Trust Co. v. Burke,
902 F.3d 548 (5th Cir. 2018) (per curiam)………………………………………………. 5
Flynt v. Lombardi,
782 F.3d 963 (8th Cir. 2015)……………………………………………………………… 23
FTC v. Johnson,
800 F.3d 448 (8th Cir. 2015)………………………………………………………… 14, 15
Lucas v. W.W. Grainger, Inc.,
257 F.3d 1249 (11th Cir. 2001)………………………………………………………….. 18
Meadowfield Apartments, Ltd. v. United States,
261 F. App’x 195 (11th Cir. 2008)……………………………………………………… 12

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Case: 19-13015      Date Filed: 03/11/2020      Page: 9 of 37

Meek v. Metropolitan Dade Cnty.,
985 F.2d 1471 (11th Cir. 1993), abrogated on other grounds,
Dillard v. Chilton Cnty. Comm’n, 495 F.3d 1324 (11th Cir. 2007)…………….. 21
Michael Linet, Inc. v. Village of Wellington, Fla.,
408 F.3d 757 (11th Cir. 2005)……………………………………………………………. 22
Mincey v. Head,
206 F.3d 1106 (11th Cir. 2000)………………………………………………………….. 22
Mt. Hawley Ins. Co. v. Sandy Lake Props., Inc.,
425 F.3d 1308 (11th Cir. 2005)……………………………………………………… 12, 13
Pansy v. Borough of Stroudsburg,
23 F.3d 772 (3d Cir. 1994)………………………………………………………………… 23
Purcell v. BankAtlantic Fin. Corp.,
85 F.3d 1508 (11th Cir. 1996)…………………………………………….. 10, 11, 13, 20
Stone v. First Union Corp.,
371 F.3d 1305 (11th Cir. 2004)………………………………………………… 14, 16, 18
United States v. City of Miami,
278 F.3d 1174 (11th Cir. 2002)………………………………………………………….. 16
United States v. Territory of Virgin Islands,
748 F.3d 514 (3d Cir. 2014)………………………………………………………………. 16

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-

  1. 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

  1. 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

ACTIVE/102469349.4

-23-

Case: 19-13015      Date Filed: 03/11/2020      Page: 34 of 37

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.

ACTIVE/102469349.4

-24-

Case: 19-13015      Date Filed: 03/11/2020      Page: 35 of 37

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

ACTIVE/102469349.4

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Case: 19-13015      Date Filed: 03/11/2020      Page: 36 of 37

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

ACTIVE/102469349.4

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

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

General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 19-13015 Docketed: 08/05/2019
Nature of Suit: 2890 Other Statutory Actions
Joanna Burke, et al v. OCWEN Financial Corp., et al
Appeal From: Southern District of Florida
Fee Status: Fee Paid
Originating Court Information:
     District: 113C-9 : 9:17-cv-80495-KAM
     Civil Proceeding: Kenneth A. Marra, Senior U.S. District Court Judge
     Secondary Judge: William Donald Matthewman, U.S. Magistrate Judge
     Date Filed: 04/20/2017
     Date NOA Filed:
     08/02/2019
General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 19-13015 Docketed: 08/05/2019
Nature of Suit: 2890 Other Statutory Actions
Joanna Burke, et al v. OCWEN Financial Corp., et al
Appeal From: Southern District of Florida
Fee Status: Fee Paid
Case Type Information:
     1) U.S. Civil
     2) U.S. Defendant – Non PLRA
     3) –
Originating Court Information:
     District: 113C-9 : 9:17-cv-80495-KAM
     Civil Proceeding: Kenneth A. Marra, Senior U.S. District Court Judge
     Secondary Judge: William Donald Matthewman, U.S. Magistrate Judge
     Date Filed: 04/20/2017
     Date NOA Filed:
     08/02/2019

 

JOANNA BURKE
Interested Party – Appellant
Joanna Burke
[NTC Pro Se]
Firm: 281-812-9591
46 KINGWOOD GREENS DR
KINGWOOD, TX 77339
CONSUMER FINANCIAL PROTECTION BUREAU
Plaintiff – Appellee
Bernard John Barrett, Jr.
Direct: 202-435-7000
[COR LD NTC U.S. Government]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552
JOHN BURKE
Interested Party – Appellant
John Burke
Direct: 281-812-9591
[NTC Pro Se]
Firm: 281-812-9591
46 KINGWOOD GREENS DR
KINGWOOD, TX 77339
versus
OCWEN FINANCIAL CORPORATION, a Florida corporation
Defendant – Appellee
Catalina E. Azuero
[NTC Retained]
Goodwin Procter, LLP
Firm: 617-570-1000
100 NORTHERN AVE
BOSTON, MA 02210Bridget Ann Berry
Direct: 561-650-7912
[NTC Retained]
Greenberg Traurig, PA
Firm: 561-650-7900
777 S FLAGLER DR STE 300E
WEST PALM BEACH, FL 33401Edwina Clarke
Direct: 617-570-1000
[COR NTC Retained]
Goodwin Procter, LLP
Firm: 617-570-1000
100 NORTHERN AVE
BOSTON, MA 02210Laura S. Craven
[NTC Retained]
Goodwin Procter, LLP
Firm: 617-570-1000
100 NORTHERN AVE
BOSTON, MA 02210

Thomas Hefferon
Direct: 617-570-1000
[NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Matthew P. Previn
[NTC Retained]
Buckley, LLP
1133 AVENUE OF THE AMERICAS STE 3100
NEW YORK, NY 10036

Amanda B. Protess
[NTC Retained]
Goodwin Procter, LLP
Firm: 212-813-8800
620 8TH AVE
NEW YORK, NY 10018-1618

Matthew L. Riffee
[NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Sabrina M. Rose-Smith
Direct: 202-346-4000
[COR NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Matthew S. Sheldon
Direct: 202-346-4000
[COR NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Tierney E. Smith
Direct: 202-346-4000
[NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Laura A. Stoll
Direct: 213-426-2500
[NTC Retained]
Goodwin Procter, LLP
601 S FIGUEROA ST 41ST FL
LOS ANGELES, CA 90017

W. Kyle Tayman
[NTC Retained]
Goodwin Procter, LLP
Firm: 202-346-4000
1900 N ST NW
WASHINGTON, DC 20036

Andrew Stuart Wein
[NTC Retained]
Greenberg Traurig, PA
Firm: 561-650-7900
777 S FLAGLER DR STE 300E
WEST PALM BEACH, FL 33401

OCWEN LOAN SERVICING LLC, a Delaware limited liability company
Defendant – Appellee
Catalina E. Azuero
[NTC Retained]
(see above)Bridget Ann Berry
Direct: 561-650-7912
[NTC Retained]
(see above)Edwina Clarke
Direct: 617-570-1000
[COR NTC Retained]
(see above)Laura S. Craven
[NTC Retained]
(see above)

Thomas Hefferon
Direct: 617-570-1000
[NTC Retained]
(see above)

Matthew P. Previn
[NTC Retained]
(see above)

Amanda B. Protess
[NTC Retained]
(see above)

Matthew L. Riffee
[NTC Retained]
(see above)

Sabrina M. Rose-Smith
Direct: 202-346-4000
[COR NTC Retained]
(see above)

Matthew S. Sheldon
Direct: 202-346-4000
[COR NTC Retained]
(see above)

Tierney E. Smith
Direct: 202-346-4000
[NTC Retained]
(see above)

Laura A. Stoll
Direct: 213-426-2500
[NTC Retained]
(see above)

W. Kyle Tayman
[NTC Retained]
(see above)

Andrew Stuart Wein
[NTC Retained]
(see above)

OCWEN MORTGAGE SERVICING INC., a U. S. Virgin Islands corporation
Defendant – Appellee
Catalina E. Azuero
[NTC Retained]
(see above)Bridget Ann Berry
Direct: 561-650-7912
[NTC Retained]
(see above)Edwina Clarke
Direct: 617-570-1000
[COR NTC Retained]
(see above)Laura S. Craven
[NTC Retained]
(see above)

Thomas Hefferon
Direct: 617-570-1000
[NTC Retained]
(see above)

Matthew P. Previn
[NTC Retained]
(see above)

Amanda B. Protess
[NTC Retained]
(see above)

Matthew L. Riffee
[NTC Retained]
(see above)

Sabrina M. Rose-Smith
Direct: 202-346-4000
[COR NTC Retained]
(see above)

Matthew S. Sheldon
Direct: 202-346-4000
[COR NTC Retained]
(see above)

Tierney E. Smith
Direct: 202-346-4000
[NTC Retained]
(see above)

Laura A. Stoll
Direct: 213-426-2500
[NTC Retained]
(see above)

W. Kyle Tayman
[NTC Retained]
(see above)

Andrew Stuart Wein
[NTC Retained]
(see above)

——————————
SERVICE Tianna Elise Baez
[NTC Not Applicable]
Consumer Financial Protection Bureau
Legal Division
1625 I ST NW
WASHINGTON, DC 20006Stephanie C. Brenowitz
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552Shirley T. Chiu
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552Lawrence DeMille-Wagman
[NTC Not Applicable]
U.S. Commodity Futures Trading Commission
Office of General Counsel
Firm: 202-418-5122
1155 21ST ST NW
WASHINGTON, DC 20010

Atur Ravi Desai
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

Scott Ray Fransen
[NTC Not Applicable]
Office of Financial Regulation
Firm: 813-218-5364
1313 N TAMPA ST STE 615
TAMPA, FL 33602

Sasha Funk Granai
[NTC Not Applicable]
Attorney General’s Office
Office of Statewide Prosecution
Firm: 813-287-7960
3507 E FRONTAGE RD STE 350
TAMPA, FL 33607-7013

Jean Marie Healey
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

Gregory Ryan Nodler
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

Jennifer Hayes Pinder
[NTC Not Applicable]
Attorney General’s Office
Criminal Division
Firm: 813-287-7900
3507 E FRONTAGE RD STE 200
TAMPA, FL 33607

Michael Posner
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

Amanda Christine Roberson
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

James Joseph Savage
[NTC Not Applicable]
Consumer Financial Protection Bureau
Firm: 212-328-7007
140 E 45TH ST FL 4
NEW YORK, NY 10017

Jack Douglas Wilson
[NTC Not Applicable]
Consumer Financial Protection Bureau
Office of the General Counsel
1700 G ST NW STE 509-B
WASHINGTON, DC 20552

Blaine H. Winship
Direct: 850-414-3657
[NTC Not Applicable]
Office of the Attorney General
Firm: 850-414-3300
PL-01 The Capitol
TALLAHASSEE, FL 32399

08/05/2019  Open Document
11 pg, 917.09 KB
CIVIL APPEAL DOCKETED. Notice of appeal filed by Appellants Joanna Burke and John Burke on 08/02/2019. Fee Status: Fee Not Paid. No hearings to be transcribed. Awaiting Appellant’s Certificate of Interested Persons due on or before 08/19/2019 as to Appellant Joanna Burke. Awaiting Appellee’s Certificate of Interested Persons due on or before 09/03/2019 as to Appellee Ocwen Financial Corporation [Entered: 08/09/2019 01:49 PM]
08/09/2019  Open Document
3 pg, 503.46 KB
TRANSCRIPT INFORMATION form filed by Party John Burke. No transcript is required for appeal purposes. [Entered: 08/09/2019 01:55 PM]
08/15/2019  Open Document
2 pg, 260.02 KB
Appellate fee was paid on 08/15/2019 as to Appellants. [Entered: 08/19/2019 04:16 PM]
08/16/2019  Open Document
6 pg, 333.1 KB
Appellant’s Certificate of Interested Persons and Corporate Disclosure Statement filed by Appellants Joanna Burke and John Burke. [Entered: 08/21/2019 09:21 AM]
08/16/2019  Open Document
12 pg, 447.77 KB
MOTION to request electronic filing permission (ECF) filed by Appellants Joanna Burke and John Burke. Opposition to Motion is Unknown [8858506-1] [Entered: 08/21/2019 09:27 AM]
08/21/2019  Open Document
2 pg, 16.28 KB
Briefing Notice issued to Appellants Joanna Burke and John Burke. The appellant’s brief is due on or before 09/24/2019. The appendix is due no later than 7 days from the filing of the appellant’s brief. [Entered: 08/21/2019 10:46 AM]
08/27/2019  Open Document
7 pg, 494.65 KB
Notice of filing: Inquiry of filing motion as to Appellants Joanna Burke and John Burke. [Entered: 08/27/2019 09:24 AM]
09/03/2019  Open Document
1 pg, 56.4 KB
APPEARANCE of Counsel Form filed by Matthew S. Sheldon for OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [19-13015] (ECF: Matthew Sheldon) [Entered: 09/03/2019 01:15 PM]
09/03/2019  Open Document
6 pg, 120.53 KB
Certificate of Interested Persons and Corporate Disclosure Statement filed by Attorney Matthew S. Sheldon for Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). [19-13015] (ECF: Matthew Sheldon) [Entered: 09/03/2019 01:33 PM]
09/05/2019  Open Document
3 pg, 154.23 KB
ORDER: Appellants’ motion to allow Appellant John Burke permission to submit documents through the Court’s electronic case filing system in this appeal is GRANTED, and Mr. Burke may submit documents through the Court’s electronic case filing system in this appeal. Mr. Burke is directed to sign up for CM/ECF access within twenty-one (21) days of the date of this order, and Mr. Burke must notify this Court’s Clerk’s Office once he has registered. Appellants are still required to file the requisite number of paper copies of any briefs. See 11th Cir. R. 31-3 (“Use of the ECF system does not modify the requirement that counsel must provide to the court seven paper copies of a brief.”). [8858506-2] AJ [Entered: 09/05/2019 03:27 PM]
09/09/2019  Open Document
11 pg, 191.5 KB
MOTION for extension of time to file appellant’s brief to 10/24/2019 filed by John Burke. Motion is Unopposed. [8874195-1] [19-13015]–[Edited 09/09/2019 by BWH] (ECF: John Burke) [Entered: 09/09/2019 01:03 PM]
09/12/2019  Open Document
3 pg, 194.9 KB
ORDER: Motion for extension to file appellant brief filed by Appellant John Burke is GRANTED. [8874195-2] Appellants brief due on 10/24/2019, with the appendix due seven days from the filing of the brief. BBM [Entered: 09/12/2019 12:19 PM]
10/07/2019  Open Document
74 pg, 745.23 KB
MOTION to take judicial notice filed by John Burke. Opposition to Motion is Unknown. [8899158-1] [19-13015] (ECF: John Burke) [Entered: 10/07/2019 07:57 AM]
10/07/2019  Open Document
14 pg, 230.89 KB
MOTION to stay lower court proceedings filed by John Burke. Opposition to Motion is Unknown. [8899164-1] [19-13015] (ECF: John Burke) [Entered: 10/07/2019 08:01 AM]
10/15/2019  Open Document
15 pg, 232.22 KB
TIME SENSITIVE MOTION to stay further appellate proceedings filed by John Burke. Opposition to Motion is Unknown. [8905974-1] [19-13015] (ECF: John Burke) [Entered: 10/13/2019 04:59 PM]
10/16/2019  Open Document
1 pg, 57.35 KB
APPEARANCE of Counsel Form filed by Sabrina M. Rose-Smith for OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [19-13015] (ECF: Sabrina Rose-Smith) [Entered: 10/16/2019 12:58 PM]
10/17/2019  Open Document
1 pg, 39.85 KB
APPEARANCE of Counsel Form filed by Bernard Barrett for Consumer Financial Protection Bureau [19-13015] (ECF: Bernard Barrett) [Entered: 10/17/2019 12:42 PM]
10/21/2019  Open Document
14 pg, 216.44 KB
EMERGENCY MOTION to stay further appellate proceedings filed by John Burke. Opposition to Motion is Unknown. [8911198-1] [19-13015] (ECF: John Burke) [Entered: 10/20/2019 08:01 PM]
10/24/2019 *STRICKEN* Appellant’s brief filed by John Burke. [19-13015]–[Edited 11/19/2019 by BWH] (ECF: John Burke) [Entered: 10/24/2019 02:43 PM]
10/24/2019 *STRICKEN* Appendix filed [1 volume VOLUMES] by Appellant John Burke. [19-13015]–[Edited 11/19/2019 by BWH] (ECF: John Burke) [Entered: 10/24/2019 02:51 PM]
10/25/2019  Open Document
2 pg, 5.25 KB
ORDER: Appellants’ motions to stay further appellate proceedings until the matter of the CFPB’s Constitutionality is answered by the U.S. Supreme Court are DENIED. Appellants’ alternative request for a stay of (90) days is GRANTED. Appellants’ brief is due January 27, 2020. [8905974-2] BBM [Entered: 10/25/2019 02:39 PM]
11/04/2019 Notice of deficient Brief filed by John Burke. Please forward paper copies of brief and appendix immediately. See 11th Circ. R. 31-3. [Entered: 11/04/2019 04:32 PM]
11/04/2019  Open Document
2 pg, 18.08 KB
Per phone call with Brad Holland (tel: 404-335-6181) and this Courts Order; Appellants alternative request for a stay of (90) days is GRANTED. Appellants brief is due January 27, 2020. Burkes will refile (deficient) brief on or before said date filed by Party John Burke. [19-13015] (ECF: John Burke) [Entered: 11/04/2019 07:27 PM]
11/07/2019  Open Document
13 pg, 221.73 KB
MOTION for reconsideration of single judge’s order entered on 10/25/2019 filed by John Burke. Opposition to Motion is Unknown. [8927320-1] [19-13015] (ECF: John Burke) [Entered: 11/07/2019 12:13 PM]
11/18/2019  Open Document
1 pg, 6.3 KB
ORDER: Appellants’ “Motion to Stay Lower Court Proceedings” is DENIED.[8899164-2]; Appellants’ “Motion to Take Judicial Notice and/or Supplement the Record” is DENIED. [8899158-2] CRW, BBM and JP [Entered: 11/18/2019 12:25 PM]
11/19/2019  Open Document
2 pg, 90.66 KB
ORDER: Appellants’ “Motion for Reconsideration to Stay Proceedings” is DENIED. On November 4, 2019, Appellants indicated in a CM/ECF docket entry that they intend to re-file their initial brief by January 27, 2020 in accordance with this Court’s October 25, 2019 order. Accordingly, Appellants’ initial brief and appendix, each filed on October 24, 2019, are STRICKEN. Appellants may file their initial brief by January 27, 2020, with the appendix due 7 days after the filing of the initial brief. [8927320-2]; BBM and JP [Entered: 11/19/2019 10:32 AM]
01/27/2020  Open Document
76 pg, 572.27 KB
Appellant’s brief filed by John Burke. [19-13015] (ECF: John Burke) [Entered: 01/26/2020 02:41 PM]
01/27/2020  Open Document
211 pg, 5.77 MB
Appendix filed [1 VOLUMES] by Appellant John Burke. [19-13015] (ECF: John Burke) [Entered: 01/26/2020 02:50 PM]
01/28/2020 ***SEALED BY ORDER OF THE COURT dated 3/6/2020***TIME SENSITIVE MOTION for recusal filed by John Burke. Opposition to Motion is Unknown. [8992909-1] [19-13015]–[Edited 03/06/2020 by BWH] (ECF: John Burke) [Entered: 01/28/2020 12:06 AM]
02/07/2020 Notice of deficient Brief and Appendix filed by John Burke. The paper copies of the Brief and Appendix have not been received. See 11th Cir. R. 31-3. Please send paper copies immediately. [Entered: 02/07/2020 09:00 AM]
02/07/2020  Open Document
13 pg, 264.85 KB
TIME SENSITIVE MOTION 14 day extension of time to file initial brief and appendix (4 volumes) filed by John Burke. Opposition to Motion is Unknown. [9003453-1] [19-13015] (ECF: John Burke) [Entered: 02/07/2020 09:42 AM]
02/07/2020  Open Document
14 pg, 299.22 KB
Notice of receipt: TIME SENSITIVE MOTION 14 day extension of time to file initial brief and appendix (4 volumes) as to Appellants Joanna Burke and John Burke. [Entered: 02/07/2020 11:15 AM]
02/18/2020 Received paper copies of EBrief filed by Appellant John Burke. [Entered: 02/19/2020 10:16 AM]
02/18/2020 Received paper copies of EAppendix filed by Appellant John Burke. 4 VOLUMES – 2 COPIES [Entered: 02/19/2020 10:25 AM]
02/19/2020  Open Document
1 pg, 12.33 KB
Public Communication: Appellees’ briefs are due on February 26, 2020. [Entered: 02/19/2020 11:49 AM]
02/21/2020  Open Document
1 pg, 6 KB
ORDER: “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor” is DENIED. [8992909-2] JP [Entered: 02/21/2020 02:17 PM]
02/25/2020  Open Document
8 pg, 170.68 KB
TIME SENSITIVE MOTION for extension of time to file appellee’s brief to 03/11/2020 filed by Ocwen Mortgage Servicing Inc., Ocwen Loan Servicing LLC and OCN. Motion is Unopposed. [9017598-1] [19-13015] (ECF: Matthew Sheldon) [Entered: 02/25/2020 11:28 AM]
02/25/2020 Over the phone extension granted by clerk as to Attorney Bernard John Barrett, Jr. for Appellee Consumer Financial Protection Bureau. Appellee’s Brief due on 03/11/2020 as to Appellee Consumer Financial Protection Bureau.. [Entered: 02/25/2020 11:57 AM]
02/25/2020  Open Document
1 pg, 14.42 KB
ORDER: Motion for extension to file appellee brief filed by Appellees Ocwen Loan Servicing LLC, OCN and Ocwen Mortgage Servicing Inc. is GRANTED by clerk. [9017598-2] Appellees brief due on 03/11/2020. [Entered: 02/25/2020 12:19 PM]
03/06/2020  Open Document
2 pg, 5.31 KB
ORDER: The Clerk’s Office is DIRECTED to seal “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor.” ENTERED FOR THE COURT – BY DIRECTION [Entered: 03/06/2020 09:36 AM]
03/09/2020  Open Document
15 pg, 236.84 KB
MOTION to unseal filed by John Burke. Opposition to Motion is Unknown. [9028354-1] [19-13015] (ECF: John Burke) [Entered: 03/07/2020 04:08 PM]
03/11/2020  Open Document
8 pg, 114.41 KB
Certificate of Interested Persons and Corporate Disclosure Statement filed by. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 03:44 PM]
03/11/2020  Open Document
37 pg, 203.33 KB
Appellee’s Brief filed by Appellee Consumer Financial Protection Bureau. [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 04:33 PM]
03/11/2020  Open Document
1 pg, 54.52 KB
APPEARANCE of Counsel Form filed by Edwina Clarke for OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc. [19-13015] (ECF: Edwina Clarke) [Entered: 03/11/2020 06:43 PM]
03/11/2020  Open Document
37 pg, 237.36 KB
Appellee’s Brief filed by Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [19-13015] (ECF: Sabrina Rose-Smith) [Entered: 03/11/2020 06:58 PM]
03/13/2020 Received paper copies of EBrief filed by Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [Entered: 03/13/2020 10:41 AM]
03/13/2020 Received paper copies of EBrief filed by Appellee Consumer Financial Protection Bureau. [Entered: 03/16/2020 07:42 AM]
03/18/2020  Open Document
393 pg, 4.83 MB
Supplemental Appendix [2 VOLUMES] filed by Appellees Ocwen Mortgage Servicing Inc., Ocwen Loan Servicing LLC and OCN. [19-13015] (ECF: Sabrina Rose-Smith) [Entered: 03/18/2020 10:09 AM]
03/19/2020 Received paper copies of EAppendix filed by Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. 2 VOLUMES – 3 COPIES [Entered: 03/23/2020 03:52 PM]
03/23/2020 Over the phone extension granted by clerk as to Party John Burke. Updated Reply Brief. Due on 04/29/2020 as to Appellant John Burke. [Entered: 03/23/2020 01:02 PM]
03/31/2020  Open Document
1 pg, 6.04 KB
ORDER: Appellants’ “Motion to Unseal” is DENIED. [9028354-2] ENTERED FOR THE COURT – BY DIRECTION [Entered: 03/31/2020 03:27 PM]
04/17/2020  Open Document
15 pg, 344.59 KB
MOTION for extension of time to file reply brief to 05/29/2020 filed by John Burke. Opposition to Motion is Unknown. [9064430-1] [19-13015]–[Edited 04/17/2020 by BWH] (ECF: John Burke) [Entered: 04/17/2020 10:24 AM]
04/20/2020  Open Document
2 pg, 5.04 KB
ORDER: The motion for extension of time to and including May 29, 2020 in which to file Appellants’ reply brief is DENIED. [9064430-2] CRW [Entered: 04/20/2020 09:34 AM]
04/24/2020  Open Document
13 pg, 175.9 KB
TIME SENSITIVE MOTION to stay the briefing schedule filed by John Burke. Opposition to Motion is Unknown. [9070402-1] [19-13015] (ECF: John Burke) [Entered: 04/24/2020 12:49 PM]
04/28/2020  Open Document
2 pg, 5.89 KB
ORDER: Appellants’ motions for stay is DENIED. Appellants request for an extension of time is DENIED. Appellants’ reply brief is due April 29, 2020. [9070402-2] CRW [Entered: 04/28/2020 10:08 AM]
04/29/2020  Open Document
98 pg, 1.01 MB
***DOCUMENT FILED WITHOUT LEAVE OF THE COURT***Reply Brief filed by Appellant John Burke. [19-13015]–[Edited 05/28/2020 by BWH]–[Edited 06/23/2020 by BWH] (ECF: John Burke) [Entered: 04/29/2020 03:56 PM]
04/29/2020  Open Document
2 pg, 16.55 KB
Notice of deficient Reply brief filed by Party John Burke.Deficiencies: Pursuant to 11th Cir. R. 28-1, IOP 2, You are only allowed to file One (1) Reply Brief. (See below). “One Attorney, One Brief”. Unless otherwise directed by the court, an attorney representing more than one party in an appeal may only file one principal brief (and one reply brief, if authorized), which will include argument as to all of the parties represented by that attorney in that appeal, and one (combined) appendix. A single party responding to more than one brief, or represented by more than one attorney, is similarly bound. [Entered: 04/29/2020 04:51 PM]
04/30/2020  Open Document
9 pg, 150.95 KB
Notice of inability to comply with the paper copy requirement due to COVID-19 filed by Party John Burke. Paper copies will be submitted at a future date established by the Court. [19-13015] (ECF: John Burke) [Entered: 04/30/2020 07:05 AM]
05/06/2020  Open Document
33 pg, 700.66 KB
SUPPLEMENTAL Appendix filed [1 VOLUMES] by Appellant John Burke. [19-13015] (ECF: John Burke) [Entered: 05/06/2020 12:35 PM]
05/18/2020  Open Document
27 pg, 291.04 KB
MOTION for recusal filed by John Burke. Opposition to Motion is Unknown. [9088536-1] [19-13015] (ECF: John Burke) [Entered: 05/16/2020 05:27 PM]
05/28/2020  Open Document
11 pg, 266.1 KB
MOTION to clarification filed by John Burke. Opposition to Motion is Unknown. [9098968-1] [19-13015] (ECF: John Burke) [Entered: 05/28/2020 06:30 PM]
06/09/2020  Open Document
8 pg, 400.71 KB
judicial complaint re judge kenneth marra, sd florida filed by Party John Burke. [19-13015] (ECF: John Burke) [Entered: 06/09/2020 11:05 AM]
06/09/2020  Open Document
42 pg, 1.06 MB
MOTION to adopt brief filed by John Burke. Opposition to Motion is Unknown. [9107502-1] [19-13015] (ECF: John Burke) [Entered: 06/09/2020 12:31 PM]
06/10/2020  Open Document
9 pg, 150.51 KB
EMERGENCY MOTION for extension of time to file reply brief to 08/10/2020 filed by John Burke. Opposition to Motion is Unknown. [9108174-1] [19-13015] (ECF: John Burke) [Entered: 06/10/2020 08:24 AM]
06/10/2020  Open Document
39 pg, 388.81 KB
Reply Brief filed by Appellant John Burke. [19-13015] (ECF: John Burke) [Entered: 06/10/2020 11:34 PM]
06/17/2020  Open Document
96 pg, 801.78 KB
Appendix filed [1 VOLUMES] by Appellant John Burke. [19-13015] (ECF: John Burke) [Entered: 06/17/2020 02:28 PM]
06/22/2020  Open Document
11 pg, 124.62 KB
RESPONSE to Motion filed by Appellant John Burke [9098968-2] filed by Attorney Bernard John Barrett, Jr. for Appellee Consumer Financial Protection Bureau. [19-13015] (ECF: Bernard Barrett) [Entered: 06/22/2020 12:17 PM]
06/25/2020  Open Document
2 pg, 211.9 KB
ORDER: “Appellants Burkes’ Motion to Clarify” is DENIED AS UNNECESSARY because The Consumer Financial Protection Bureau provided sufficient clarification in its response to the motion. “Appellants Burkes’ Motion for Relief to Retain the 3 Reply Briefs on the Record” is DENIED. “Appellants Burkes’ Motion for Extension of Time” is construed as a motion to accept the Appellants’ reply brief docketed on June 10, 2020 and is GRANTED. The reply brief docketed on June 10, 2020 will serve as Appellants’ reply brief in this appeal. [9108174-2] [9107502-2] [9098968-2] ELB [Entered: 06/25/2020 09:43 AM]
06/26/2020  Open Document
16 pg, 220.84 KB
TIME SENSITIVE MOTION for reconsideration of single judge’s order entered on 06/25/2020 filed by John Burke. Opposition to Motion is Unknown. [9122190-1] [19-13015] (ECF: John Burke) [Entered: 06/26/2020 07:21 AM]
07/02/2020  Open Document
2 pg, 156.24 KB
Re Marra, Kenneth Complaint filed by Party John Burke. [19-13015] (ECF: John Burke) [Entered: 07/02/2020 07:13 AM]
07/06/2020  Open Document
9 pg, 151.49 KB
MOTION for reconsideration of single judge’s order entered on 06/25/2020 filed by John Burke. Opposition to Motion is Unknown. [9128556-1] [19-13015] (ECF: John Burke) [Entered: 07/05/2020 11:27 PM]
07/10/2020 Notice of deficient Appearance of Counsel filed by John Burke. The required paper copies have not been received. Please promptly submit the paper copies OR file with this court a Notice of Inability to Submit Paper Copies due to COVID-19. [Entered: 07/10/2020 12:33 PM]
07/14/2020  Open Document
2 pg, 194.81 KB
Appendix filed [1 VOLUMES] by Appellant John Burke. [19-13015] (ECF: John Burke) [Entered: 07/14/2020 04:01 PM]
07/22/2020  Open Document
1 pg, 176.33 KB
ORDER: The June 26, 2020 “Appellant Burkes’ Motion for Reconsideration Re Motion to Clarify, In Part, Regarding CIP” and the July 6, 2020 “Appellant Burkes’ Motion for Reconsideration Re Motion to Clarify, In Part, Regarding 3 Briefs” are DENIED.[9128556-2] [9122190-2] AJ and ELB [Entered: 07/22/2020 03:30 PM]
08/04/2020  Open Document
11 pg, 159.18 KB
MOTION for reconsideration of a panel order CONSTRUED AS Motion for clarification entered on 07/22/2020 filed by John Burke. Motion is Opposed. [9154698-1] [19-13015]–[Edited 08/05/2020 by BWH] (ECF: John Burke) [Entered: 08/04/2020 04:29 PM]
08/06/2020  Open Document
69 pg, 1.1 MB
Letter to Chief Justice William Pryor re Burkes Judicial Complaint against Judge Kenneth Marra filed by Party John Burke. [19-13015] (ECF: John Burke) [Entered: 08/06/2020 10:26 PM]
08/11/2020 Notice of deficient Brief filed by John Burke. The required paper copies have not been received. Please promptly submit the paper copies OR file with this court a Notice of Inability to Submit Paper Copies due to COVID-19. [Entered: 08/11/2020 12:35 PM]
08/19/2020  Open Document
1 pg, 148.4 KB
Notice of inability to comply with the paper copy requirement due to COVID-19 filed by Appellant John Burke. [19-13015]–[Edited 08/20/2020 by BWH] (ECF: John Burke) [Entered: 08/19/2020 02:38 PM]
09/02/2020  Open Document
24 pg, 1.06 MB
MOTION to take judicial notice filed by John Burke. Motion is Opposed. [9178765-1] [19-13015] (ECF: John Burke) [Entered: 09/02/2020 01:32 PM]
09/02/2020  Open Document
10 pg, 153.21 KB
MOTION Answers to pending motions. filed by John Burke. Motion is Opposed. [9178771-1] [19-13015] (ECF: John Burke) [Entered: 09/02/2020 01:36 PM]
General Docket
United States Court of Appeals for the Eleventh Circuit
Court of Appeals Docket #: 19-13015 Docketed: 08/05/2019
Nature of Suit: 2890 Other Statutory Actions
Joanna Burke, et al v. OCWEN Financial Corp., et al
Appeal From: Southern District of Florida
Fee Status: Fee Paid
Case Type Information:
     1) U.S. Civil
     2) U.S. Defendant – Non PLRA
     3) –
Originating Court Information:
     District: 113C-9 : 9:17-cv-80495-KAM
     Civil Proceeding: Kenneth A. Marra, Senior U.S. District Court Judge
     Secondary Judge: William Donald Matthewman, U.S. Magistrate Judge
     Date Filed: 04/20/2017
     Date NOA Filed:
     08/02/2019

02/21/2020 Open Document ORDER: “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor” is DENIED. [8992909-2] JP [Entered: 02/21/2020 02:17 PM]
02/25/2020 Open Document TIME SENSITIVE MOTION for extension of time to file appellee’s brief to 03/11/2020 filed by Ocwen Mortgage Servicing Inc., Ocwen Loan Servicing LLC and OCN. Motion is Unopposed. [9017598-1] [19-13015] (ECF: Matthew Sheldon) [Entered: 02/25/2020 11:28 AM]
02/25/2020 Over the phone extension granted by clerk as to Attorney Bernard John Barrett, Jr. for Appellee Consumer Financial Protection Bureau. Appellee’s Brief due on 03/11/2020 as to Appellee Consumer Financial Protection Bureau.. [Entered: 02/25/2020 11:57 AM]
02/25/2020 Open Document ORDER: Motion for extension to file appellee brief filed by Appellees Ocwen Loan Servicing LLC, OCN and Ocwen Mortgage Servicing Inc. is GRANTED by clerk. [9017598-2] Appellees brief due on 03/11/2020. [Entered: 02/25/2020 12:19 PM]
03/06/2020 Open Document ORDER: The Clerk’s Office is DIRECTED to seal “Appellants Burkes’ Motion to Disqualify Judge Jill A. Pryor.” ENTERED FOR THE COURT – BY DIRECTION [Entered: 03/06/2020 09:36 AM]
03/09/2020 Open Document MOTION to unseal filed by John Burke. Opposition to Motion is Unknown. [9028354-1] [19-13015] (ECF: John Burke) [Entered: 03/07/2020 04:08 PM]
03/11/2020 Open Document Certificate of Interested Persons and Corporate Disclosure Statement filed by. On the same day the CIP is served, the party filing it must also complete the court’s web-based stock ticker symbol certificate at the link here http://www.ca11.uscourts.gov/web-based-cip or on the court’s website. See 11th Cir. R. 26.1-2(b). [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 03:44 PM]
03/11/2020 Open Document Appellee’s Brief filed by Appellee Consumer Financial Protection Bureau. [19-13015] (ECF: Bernard Barrett) [Entered: 03/11/2020 04:33 PM]
03/11/2020 Open Document APPEARANCE of Counsel Form filed by Edwina Clarke for OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc. [19-13015] (ECF: Edwina Clarke) [Entered: 03/11/2020 06:43 PM]
03/11/2020 Open Document Appellee’s Brief filed by Appellees OCN, Ocwen Loan Servicing LLC and Ocwen Mortgage Servicing Inc.. [19-13015] (ECF: Sabrina Rose-Smith) [Entered: 03/11/2020 06:58 PM]

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Laws In Texas is a blog about the Financial Crisis and how the banks and government are colluding against the citizens and homeowners of the State of Texas and relying on a system of #FakeDocs and post-crisis legal precedents, specially created by the Court of Appeals for the Fifth Circuit to foreclose on homeowners around this great State. We are not lawyers. We do not offer legal advice. We are citizens of the State of Texas who have spent a decade in the court system in Texas and have been party to during this period to the good, the bad and the very ugly.

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