Burke v. Ocwen Fin. Corp.

JOANNA BURKE, JOHN BURKE, Interested Parties - Appellants,CONSUMER FINANCIAL PROTECTION BUREAU, Plaintiff,OFFICE OF THE ATTORNEY GENERAL,State of Florida, Department of Legal Affairs, et al., Consolidated Plaintiffs, v. 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.

No. 19-13015

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

November 2, 2020

[DO NOT PUBLISH]

Non-Argument Calendar

D.C. Docket No. 9:17-cv-80495-KAM Appeal from the United States District Court for the Southern District of Florida

Before NEWSOM, GRANT, and LAGOA, Circuit Judges.

PER CURIAM:

John and Joanna Burke, proceeding pro se, appeal from the denial of their motions to intervene as of right and by permission and for reconsideration in an action brought by the Consumer Financial Protection Bureau (CFPB) against Ocwen Financial Corporation, Ocwen Mortgage Serving, Inc., and Ocwen Loan Serving, LLC (collectively, Ocwen).¹ After careful review, we affirm the district court's rulings.

I

The CFPB sued Ocwen, alleging violations of: (1) the Consumer Financial Protection Act, 12 U.S.C. §§ 5531, 5536; (2) the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e(2)(a), 1692e(10), 1692f; (3) the Real Estate Settlement Procedures Act, 12 U.S.C. §§ 2605, 2617; (4) the Truth in Lending Act, 15 U.S.C. § 1604(a); and (5) the Homeowners Protection Act of 1998, 12 U.S.C. § 4902(b).

Separately, the Burkes were involved in two cases implicating their property. First, in April 2011, Deutsche Bank initiated an action to foreclose the Burkes' property. Deutsche Bank Nat'l Tr. Co. v. Burke, 902 F.3d 548, 550 (5th Cir. 2018). That action concluded when the Fifth Circuit held that the foreclosure of the Burkes' property could proceed. Id. at 551-52. Second, after the Fifth Circuit's decision on foreclosure, the Burkes sued Ocwen, alleging that Ocwen violated federal and state law in servicing their loan. Burke et al v. Ocwen Loan Servicing, LLC, 18-cv-04544, Dkt. 1 (S.D. Tex.).

After the CFPB and Ocwen had already conducted extensive discovery, including filings under seal, the Burkes moved pro se to intervene in the case, both as of right and permissively. The Burkes asserted that Ocwen was the mortgage servicer for their mortgage with Deutsche Bank, that they were under wrongful foreclosure, and that they were separately litigating against Ocwen in the Southern District of Texas. The Burkes argued that they had direct knowledge of facts that would help the CFPB's case and explained that they were intervening because they wanted 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." The Burkes further contended that they had a right to intervene and that their motion was timely because the CFPB's case had not reached trial. They asserted that they had an interest in the suit, citing their Texas litigation againstOcwen, and claiming that they would be impaired if not allowed to intervene. The Burkes also argued that they satisfied the requirements for permissive intervention. Without their participation, the Burkes contended, the CFPB's case would likely lead to a "political charade" of a settlement that would not actually compensate the victims.

The CFPB and Ocwen jointly opposed the Burkes' intervention, and the Burkes filed a reply. By May 2019, when their motion to intervene was still pending, the Burkes inquired with the district court about the status of the motion. In that inquiry, the Burkes also asserted that they should be allowed to intervene to access sealed documents that would be useful in their separate litigation.

The district court denied the Burkes' motion to intervene. The Burkes then moved for reconsideration, raising a new argument not in their motion to intervene—that the district court should allow the Burkes to intervene to obtain information that they could use in their litigation against Ocwen. The district court denied the Burkes' motion for reconsideration, which it categorized as a motion under Federal Rule of Civil Procedure 59(e). The Burkes now appeal both the denial of their motion to intervene and their motion for reconsideration.

II

A

We begin with the Burkes' motion to intervene as of right. Federal Rule of Civil Procedure 24 provides, in pertinent part:

(a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: . . .

(2) 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 has interpreted Rule 24(a)(2) to require a party seeking intervention as a right to demonstrate that:

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

Tech. Training Assocs., Inc. v. Buccaneers Ltd. P'ship, 874 F.3d 692, 695-96 (11th Cir. 2017) (quoting Stone v. First Union Corp., 371 F.3d 1305, 1308-09 (11th Cir. 2004)). Putative intervenors—here, the Burkes—bear the burden of proof to establish all four bases for intervention as a matter of right. Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir. 1989); Stone, 371 F.3d at 1308. We review the denial of a motion to intervene de novo, but subsidiary findings of fact for clear error. Tech. Training Assocs., 874 F.3d at 695.

The district court's analysis focused on the third and fourth requirements—impairment and adequate representation. Specifically, it noted that the Burkes "failed to establish that their interests, if any, would be impaired by the disposition of this action," and that "their interests, if any, would be adequately represented by CFPB, who seeks to hold Ocwen accountable for allegedly wrongfully foreclosing upon property based upon inadequate information." The district court also indirectly addressed timeliness, noting that discovery had been "underway for over a year when the motion to intervene was filed." We will address each of the four factors in turn.

First we consider timeliness. When evaluating timeliness, we look to:

[t]he length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene[;] 2. The extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case[;] 3. The extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied[;] and 4. The existence of unusual circumstances militating either for or against a determination that the application is timely.

Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel, 861 F.3d 1278, 1294 (11th Cir. 2017). Although the district court did not directly address timeliness, "[t]his court may affirm a decision of the district court on any ground supported by the record." Krutzig v. Pulte Home Corp., 602 F.3d 1231, 1234 (11th Cir. 2010).

Here, the CFPB filed its complaint on April 20, 2017; the Burkes first moved to intervene on January 4, 2019. On those facts alone, the Burkes' motion was probably untimely. But the Burkes could, and did, argue that they "actually knew, or reasonably should have known of their interest in the case" much later than April 20, 2017. See Salvors, 861 F.3d at 1294. The Burkes emphasized that they filed their motion to intervene "only a month or so" after the entry of judgment of foreclosure in their Texas case.

But the Burkes first made this argument in their motion to reconsider—not their motion to intervene. We have long held that litigants may not use motions to reconsider to "relitigate old matters, raise argument or present evidence that could have been raised prior to the entry of judgment." Michael Linet, Inc. v. Vill. of Wellington, Fla., 408 F.3d 757, 763 (11th Cir. 2005); Stone v. Wall, 135 F.3d 1438, 1442 (11th Cir. 1998); Mays v. U.S. Postal Serv., 122 F.3d 43, 46 (11th Cir. 1997). In any event, even if the Burkes had properly raised this argument in their motion to intervene, it remains unclear whether they would meet their burden on timeliness. The Burkes do not explain why they could not have moved to intervene before the judgment of foreclosure in their Texas case, which commenced in 2011. The Burkes state conclusorily that they "could not have intervened any earlier in law as the judgment of foreclosure in their case was by plaintiff Deutsche Bank National Trust Company." Further, they cite to "therecent Fifth Circuit decision in Riddle" for the proposition that "they had to sue Ocwen [] independently to show a direct and legally protectable interest." Although the Burkes don't provide a citation, we assume they mean Christiana Tr. v. Riddle, 911 F.3d 799 (5th Cir. 2018). In any event, they fail to elaborate further on how the foreclosure and Riddle relate to the timing of their motion to intervene. The Burkes thus have not satisfied their burden.

The Burkes also contend that the district court acted in an untimely manner. The Burkes note that the district court took six months to rule on their motion to intervene, even after the Burkes had reminded the court to rule on the motion. This point is simply irrelevant. Whether or not the district court ruled quickly on the Burkes' motion to intervene does...