United States District Court, D. Colorado
RICHARD GEORGE, STEVEN LEAVITT, SANDRA LEAVITT, DARRELL DALTON, and all others similarly situated, Plaintiffs,
BANK OF AMERICA, N.A., Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix, United States Magistrate Judge
matter is before the Court on the Motion to Intervene
by Ajay Sood, A Victim of Bank of America, N.A.'s
H.A.M.P. Fraud [#85],  and Movant Zadie B. Davis'
Motion to Intervene Under F.R.C.P. 24(b) Re: H.A.M.P.
Loan Modification Fraud [#90]. Defendant filed
Responses [#91, #97] in opposition to the Motions [#85, #90].
Plaintiffs filed a Joinder [#93] in Defendant's
opposition to Mr. Sood's request to intervene. No Replies
have been filed in support. The Court has reviewed the entire
case file, and the applicable law, and is sufficiently
advised in the premises. For the reasons set forth below, the
Court respectfully RECOMMENDS that the
Motions [#85, #90] be DENIED.
on behalf of themselves and a nationwide class, initiated
this lawsuit on July 10, 2013. Compl. [#1]. They
bring claims pursuant to the Racketeer Influenced and Corrupt
Organizations Act (“RICO”), 18 U.S.C. §
1962(c), and promissory estoppel. Am. Compl. [#12]
at 82-92. Plaintiffs allege that Defendant engaged in mail
and wire fraud and extortion through its administration of
the Home Affordable Modification Program
(“HAMP”), a federal government program launched
to give mortgage servicers an incentive to modify loan terms
for delinquent borrowers. Id. at 11; 82-92.
Movants are pro se litigants. They each assert, in essence,
that they should be permitted to intervene as Plaintiffs
because their claims share a common question of law or fact
with the main action.
intervention is governed by Federal Rule of Civil Procedure
24(b)(1)(B), which provides that, on timely motion, the 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.” If this threshold inquiry is met, the
Court must “consider whether the intervention will
unduly delay or prejudice the adjudication of the original
parties' rights.” Fed.R.Civ.P. 24(b)(3). Other
factors to consider are “whether the would-be
intervenor's input adds value to the existing litigation;
. . . whether the petitioner's interests are adequately
represented by the existing parties; . . . and the
availability of an adequate remedy in another action.”
Rocky Mountain Wild v. Kornze, No. 13-cv-1988-AP,
2014 WL 536946, at *1 (D. Colo. Feb. 11, 2014) (citing
Lower Ark. Valley Water Conservancy Dist. v. United
States, 252 F.R.D. 687, 690-91 (D. Colo. 2008)). Whether
or not to grant a motion for permissive intervention under
Rule 24(b) is within the Court's discretion. See,
e.g., City of Stilwell v. Ozarks Rural Elec. Co-op.
Corp., 79 F.3d 1038, 1043 (10th Cir. 1996).
initial matter, Mr. Sood's Motion [#85] is not
“accompanied by a pleading that sets out the claim or
defense for which intervention is sought.” Fed.R.Civ.P.
24(c). He states that “Movant is willing to appear in
court to testify and present evidence in support of his
claims, ” yet he has not explained what those claims
might be. Mr. Sood has provided bare facts alleging that he
“approached [Defendant] for a HAMP loan
modification” in 2010, was pushed instead into
refinancing his loan, and was “defrauded . . . in the
amount of $16, 500.” Sood's Motion [#85]
at 2. These facts do not indicate that Mr. Sood has a
“claim or defense that shares with the main action a
common question of law or fact” because the proposed
classes in this matter consist of individuals who applied for
a HAMP modification, and Mr. Sood does not allege that he did
so. See Fed. R. Civ. P. 24(b)(1)(B); Rocky
Mountain Wild, 2014 WL 536946, at *1. Additionally, Mr.
Sood's assertion that “[c]omplete relief cannot be
granted without the intervention of the Movant” is
unpersuasive, as it is not supported by further explanation.
Sood's Motion [#85] at 2. Accordingly, the Court
respectfully recommends that Mr. Sood's
Motion [#85] be denied.
Davis' Motion [#90] unfortunately fares no better. Ms.
Davis asserts that she was provided a trial loan modification
under the HAMP program, successfully completed the trial
payments, yet was never provided with a permanent loan.
Davis' Motion [#90]. While these allegations
tend to show that Ms. Davis' potential claim may share a
common question of law or fact with the main action, she has
provided no explanation of why her interests are not
adequately protected by the current Plaintiffs, or how her
input would add value to the litigation. See Rocky
Mountain Wild, 2014 WL 536946, at *1; Tri-State
Generation & Transmission Ass'n, Inc. v. New Mexico
Pub. Regulation Comm'n, 787 F.3d 1068, 1075 (10th
Cir. 2015) (“While not a required part of the test for
permissive intervention, a court's finding that existing
parties adequately protect prospective intervenors'
interests will support a denial of permissive
intervention.”) (quoting Am. Ass'n of People
with Disabilities v. Herrera, 257 F.R.D. 236, 249
(D.N.M. 2008)). Moreover, considering the age of the case, it
is plausible that permitting Ms. Davis to intervene at this
late stage may unduly delay or prejudice adjudication of the
existing parties' rights. Fed.R.Civ.P. 24(b)(3).
the Court notes that, if the class certification is
successful, denying Ms. Davis' request to intervene does
not preclude her future ability to become part of the
class. See Clark v. State Farm Mut. Auto.
Ins. Co., No. 00-CV-01841-LTB-PAC, 2007 WL 1850996, at
*4 (D. Colo. June 25, 2007) (“The proposed intervenors
do not explain how their interests will be impaired if their
motion is denied. If a class in this case is certified, they
still may, if they qualify, become part of the
the Court respectfully recommends that Ms.
Davis' Motion [#90] be denied.
foregoing reasons, The Court respectfully
RECOMMENDS that the ...