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MTGLQ Investors, LP v. Wellington

United States District Court, D. New Mexico

June 6, 2018



         This matter comes before the Court on David Wellington's Motion to Intervene, filed on January 22, 2018.[1] (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.

         I. Background

         This 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).

         On 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).

         Mr. Wellington filed this motion six (6) days after Ms. Wellington supposedly created the joint tenancy with right of survivorship, after this foreclosure case commenced.

         II. Legal Standard

         A 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) (en banc)).

         “While 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).

         III. Discussion

         MTGLQ 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.[2] (Doc. 58) at 3. The Court will address the disputed issues in turn.

         A. Timeliness

         “[Courts] 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 omitted).

         Mr. 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.[3]

         B. Interest in the ...

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