United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
matter comes before the Court on David Wellington's
Motion to Intervene, filed on January 22, 2018. (Doc. 54).
Separately, JP Morgan Chase Bank, N.A. (“JP Morgan
Chase”) and MTGLQ Investors, LP (“MTGLQ”)
responded on February 5, 2018. (Docs. 58 and 59). Mr.
Wellington filed his reply on February 21, 2018. (Doc. 62).
Having considered the parties' briefing and the relevant
law, the Court denies Mr. Wellington's Motion.
Motion is part of a larger foreclosure case. The property in
dispute is commonly referred to as 2124 Altura Verde Lane,
Albuquerque, NM 87110 (“the Altura Verde
property”). (Doc. 1-1) at 3. Mr. Wellington includes
three deeds with his Motion. On December 12, 2003, Richard L.
Cobb as Trustee of the Ruth E. Michaelsen Revocable Trust
Agreement, deeded the Altura Verde property to Ms.
Wellington. (Doc. 54, Ex. C). A few years later, on January
28, 2007, Ms. Wellington deeded the Altura Verde property to
herself as Trustee of the Monica L. Wellington Declaration of
Trust. (Doc. 54, Ex. B).
January 16, 2018, Monica L. Wellington, a Trustee for the
Monica L. Wellington Declaration of Trust, conveyed, through
a Grant Deed, to Monica L. Wellington and Mr. Wellington the
Altura Verde property as joint tenants with right of
survivorship. (Doc. 54, Ex. A). Ms. Wellington and Mr.
Wellington are siblings. (Doc. 54) at 2. The Grant Deed is
accompanied by an Acknowledgment from Guadalupe B.
Valdepenas, a Notary Public in the State of California. (Doc.
54, Ex. A).
Wellington filed this motion six (6) days after Ms.
Wellington supposedly created the joint tenancy with right of
survivorship, after this foreclosure case commenced.
non-party may intervene in a pending action if he shows
“[o]n timely motion…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 [his] interest, unless existing parties adequately
represent that interest.” Fed.R.Civ.P. 24(a)(2). The
Tenth Circuit “has historically taken a
‘liberal' approach to intervention and thus favors
the granting of motions to intervene.” Western
Energy Alliance v. Zinke, 877 F.3d 1157, 1164 (10th Cir.
2017) (citation omitted). “The factors of Rule 24(a)(2)
are intended to ‘capture the circumstances in which the
practical effect on the prospective intervenor justifies its
participation in the litigation, ' and ‘[t]hose
factors are not rigid, technical requirements.'”
WildEarth Guardians v. National Park Service, 604
F.3d 1192, 1198 (10th Cir. 2010) (quoting San Juan County
v. United States, 503 F.3d 1163, 1195 (10th Cir. 2007)
the Tenth Circuit requires that pleadings filed by pro
se litigants be held to a less stringent standard than
that of a lawyer, this District has long insisted that
pro se parties follow the same rules of civil
procedure as any other litigant.” Austin v.
Everbank, 2016 WL 9777221, at *3 (D.N.M.) (citing
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991)). It is not “the proper function of the district
court to assume the role of advocate for the pro se
litigant.” Bellmon, 935 F.2d at 1110. For
instance, the Court “will not supply additional facts,
nor will [it] construct a legal theory for [a pro
se] plaintiff that assumes facts that have not been
pleaded.” Dunn v. White, 880 F.2d 1188, 1197
(10th Cir. 1989) (per curiam).
and JP Morgan Chase dispute that Mr. Wellington timely filed
his Motion and that he has an interest in the Altura Verde
property. They also contend Ms. Wellington adequately
represents Mr. Wellington's interest, if any. However,
there appears to be no dispute as to whether Mr.
Wellington's interest in the Altura Verde property may be
impaired or impeded by the outcome of the case. (Doc. 58) at 3.
The Court will address the disputed issues in turn.
determine timeliness ‘in light of all of the
circumstances.'” Western Energy Alliance,
877 F.3d at 1164 (quoting Okla. ex. rel. Edmonson v.
Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir.
2010)). “But three non-exhaustive factors are
particularly important: (1) the length of time since the
movants knew of their interests in the case; (2) prejudice to
the existing parties; and (3) prejudice to the
movants.” Id. (internal quotation marks
Wellington immediately, within six (6) days, filed his motion
after he acquired an interest in the property from Ms.
Wellington. Even so, JP Morgan Chase argues it would be
prejudiced if Mr. Wellington is allowed to intervene. JP
Morgan Chase, however, does not establish how or why it would
be prejudiced. Similarly, neither MTGLQ nor Ms. Wellington
establish how they would suffer prejudice if Mr. Wellington
intervened. Therefore, the Court concludes that the
combination of length of time and the lack of prejudice to
existing parties together weigh in favor of finding that Mr.
Wellington's motion was timely.
Interest in the ...