United States District Court, D. South Carolina, Charleston Division
Adam M. Park and Tracy Park, Plaintiff,
McCabe Trotter & Beverly, P.C., Defendant.
ORDER AND OPINION
RICHARD MARK GERGEL, UNITED STATES DISTRICT COURT JUDGE
matter is before the Court on Crowfield Plantation Community
Services Association, Inc.'s ("Crowfield")
motion to intervene. (Dkt. No. 47.) For the reasons set forth
below, the Court grants the motion.
Adam and Tracy Park own a home in the Crowfield Development
in Goose Creek, South Carolina. Their property is subject to
recorded declarations of covenants, conditions, and
restrictions that require her to pay annual assessments to
Crowfield and to pay assessed fines for violations of use
restrictions. Crowfield retained Defendant McCabe Trotter
& Beverly, P.C. ("MTB") to collect past due
assessments. MTB filed a foreclosure complaint against
Plaintiffs in the Berkley County Court of Common Pleas on
January 8, 2016, alleging Plaintiffs owed assessments, fines,
and other charges under the covenants and Crowfield governing
documents. (Dkt. No. 44-3.)
filed the present action on January 24, 2017 in the Berkley
County Court of Common Pleas, asserting MTB's debt
collection efforts violated the federal Fair Debt Collections
Act ("FDCPA"), 15U.S.C. 1692. (Dkt. No. 1-1.)
Plaintiffs filed for partial summary judgment on June 26,
2018, and Defendant filed their own motion for summary
judgement on June 29, 2018. (Dkt. No. 44; Dkt. No. 45.) In
their motion for partial summary judgment, Plaintiffs assert
the debt collection efforts were illegal for several reasons,
including, inter alia, (1) the relevant documents do
not authorize attorney's fees prior to a judgment, (2)
the relevant documents do not authorize a lien for fines, and
(3) the Crowfield board failed to follow required procedure
when they imposed fines. (Dkt. No. 44 at 13, 17-18.) In
response to these filings, non-party Crowfield filed a motion
to intervene on July 3, 2018. (Dkt. No. 47.)
of the Federal Rules of Civil Procedure provides for two
types of intervention. "Intervention of Right"
requires the court to permit anyone to intervene upon timely
motion 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). "Permissive
Intervention," on the other hand, allows the court, in
its discretion, to permit anyone to intervene upon timely
motion 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)(1)(B). In exercising discretion under Rule
24(b), "the court shall consider whether the
intervention will unduly delay or prejudice the application
of the rights of the original parties." Fed.R.Civ.P.
may be limited to certain purposes. See Newport News
Shipbuilding & Drydock Co. v. Peninsula Shipbuilders'
Ass'n, 646 F.2d 117, 122 (4th Cir. 1981) ("Even
intervention of right may properly be made conditional by the
exigencies of the particular case."); see also,
e.g., Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir.
1988) (permitting intervention for the limited purpose of
challenging a sealing order); Diagnostic Devices, Inc. v.
Taidoc Tech. Corp., 257 F.R.D. 96, 98 (W.D. N.C. 2009)
(permitting intervention for the limited purpose of opposing
a motion for temporary restraining order).
motion to intervene must be accompanied by a proposed
pleading that sets out the claim or defense for which
intervention is sought. Fed.R.Civ.P. 24(c). Courts however
may decline to require strict compliance with Rule 24(c)
where the intervention is for a limited purpose fully set
forth in motion memoranda. See Sch. Bd. of City of
Newport News v. T.R. Driscoll, Inc., No. 4;11CV79, 2011
WL 3809216, at *3 n.2 (E.D. Va. July 29, 2011), report
and recommendation adopted, No. 4;llCV79, 2011 WL
3702421 (E.D. Va. Aug. 22, 2011); Diagnostic
Devices, 257 F.R.D. at 101.
Court notes that this motion is substantially similar to
Crowfield's motion to intervene in the partially
consolidated case Aubrey v. McCabe, Trotter & Beverly,
P.C., No. 2:17-656, in which the Court granted
Crowfield's motion to intervene for the limited purpose
of briefing motions for summary judgment. The reasoning in
Aubrey v. McCabe, Trotter & Beverly, P.C., substantially
applies here as well, though the Court issues this Order and
Opinion for the sake of clarity.
intervene as of right, a movant must show: (1) timely
application; (2) an interest in the subject matter of the
underlying action; (3) that a denial of the motion for leave
to intervene would impair or impede the movant's ability
to protect its interest; and (4) that the movant's
interest is not adequately represented by the existing
parties to the litigation. Houston Gen. Ins. Co. v.
Moore, 193 F.3d 838, 839 (4th Cir. 1999). "A party
moving for intervention under 24(a) bears the burden of
establishing a right to intervene, and must do so by
satisfying all four requirements." U.S. ex rel. MP A
Constr., Inc. v. XL Specialty Ins. Co., 349 F.Supp.2d
934, 937 (D. Md. 2004). Failure to satisfy even one of these
requirements is sufficient to warrant denial of a motion for
leave to intervene as a matter of right. See NAACP v. New
York, 413 U.S. 345, 369 (1973). Crowfield argues it
satisfies these four requirements. The Court agrees.
seek, among other things, a judicial determination of
Crowfield's rights under its governing documents and
community property covenants. Crowfield's interest in
that subject is obvious. Crowfield's ability to protect
its interest plainly would be impaired if the Court denied
Crowfield an opportunity to respond to Plaintiffs assertions.
Crowfield's interest is not adequately represented by a
law firm defendant hired merely as its debt collector.
"A presumption of adequacy arises when the applicant and
an existing party have the same interest or ultimate
objectives in the litigation." Nish & Goodwill
Servs., Inc. v. Cohen, 191 F.R.D. 94, 97 (E.D. Va.
2000). Crowfield's interest in the rights and duties
created under its own governing documents is not identical
with MTB's interest in defending itself from an FDCPA
do not argue against the above. Plaintiffs instead argue the
intervention is untimely and will cause delay prejudicial to
Plaintiff. (Dkt. No. 51 at 2.) The sole issue then is whether
the motion to intervene is timely. "Rule 24 is silent as
to what constitutes a timely application and the question
must therefore be answered in each case by the exercise of
the sound discretion of the court." Black v. Cent.
Motor Lines, Inc.,500 F.2d 407, 408 (4th Cir. 1974).
The court should therefore assess, "first, how far the
underlying suit has progressed; second, the prejudice any
resulting delay ...