                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-2-2009

Manu v. Natl City Bank IN
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2840




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"Manu v. Natl City Bank IN" (2009). 2009 Decisions. Paper 1593.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1593


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                                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT


                                No. 08-2840


                              AGNES MANU,

                                      v.

                  NATIONAL CITY BANK OF INDIANA,
             d/b/a NATIONAL CITY LOAN SERVICES, INC.;
                    NATIONAL CITY CORPORATION;
             FIRST FRANKLIN FINANCIAL CORPORATION,
                d/b/a FIRST FRANKLIN LOAN SERVICES;
             RALPH ORSINI; HOME LOAN SERVICES, INC.,

                  Agnes Manu; Steve Atuahene, Appellants

                         (Pursuant to F.R.A.P. 12(a))


               On Appeal from the United States District Court
                  for the Eastern District of Pennsylvania
                   (D.C. Civil Action No. 07-cv-03611)
                 District Judge: Honorable Anita B. Brody


               Submitted Pursuant to Third Circuit LAR 34.1(a)
                              March 13, 2009

             Before: BARRY, SMITH and GARTH, Circuit Judges

                        (Opinion filed: April 2, 2009)


                                 OPINION


PER CURIAM
       Agnes Manu and Steve Atuahene appeal the District Court’s orders denying his

motion to intervene and her motion for a preliminary injunction. We will affirm.1

       In June 2006, appellee National City Bank of Indiana filed a complaint in

foreclosure against appellant Agnes Manu in the Court of Common Pleas of Philadelphia.

In May 2007, the Court of Common Pleas granted appellee’s motion for summary

judgment and entered a foreclosure judgment. Manu appealed to the Superior Court of

Pennsylvania. In December 2007 and August 2008, the Superior Court denied Manu’s

motions to enjoin the sheriff’s sale.

       In August 2007, Manu filed a complaint and a motion for a TRO and preliminary

injunction to stop the foreclosure in the District Court for the Eastern District of

Pennsylvania. On September 24, 2007, Manu’s husband, Steve Atuahene a/k/a Steve

Frempong,2 filed a motion to intervene which the District Court denied. A few months

later, Atuahene filed another motion to intervene. On January 8, 2008, the District Court

denied Manu’s motion for a TRO or preliminary injunction. On May 21, 2008, the

District Court denied the motion to intervene. On June 20, 2008, Manu and Atuahene


   1
    A sheriff’s sale of the property was scheduled for September 9, 2008. Atuahene
sought to intervene to stop the foreclosure sale but his motion was denied. He then filed
an emergency motion to prevent the property from being sold at foreclosure. That motion
was denied on September 5, 2008. We do no know whether the property has been sold,
and the briefs of the parties do not address those facts or what their effect would be on the
present appeal. Under these circumstances, we do no address this issue, and affirm for
the reasons stated in the instant opinion.
   2
     Frempong was enjoined by the District Court for the Eastern District of Pennsylvania
in 2001 from filing lawsuits without prior permission.

                                              2
filed a notice of appeal from the District Court’s January 8th and May 21st orders.

       We lack jurisdiction over the appeal from the District Court’s January 8th order

denying Manu’s motion for a preliminary injunction because the notice of appeal was not

filed within thirty days of the entry of the order. Fed. R. App. P. 4(a)(1)(A). We do have

jurisdiction over the District Court’s order denying the motion to intervene as a matter of

right. United States v. Alcan Aluminum, Inc., 25 F.3d 1174, 1179 (3d Cir. 1994).

       Atuahene moved to intervene as a matter of right under Fed. R. Civ. P. 24(a)(2).

We review the denial of such a motion for an abuse of discretion and will reverse only if

the District Court “has applied an improper legal standard or reached a decision we are

confident is incorrect.” Alcan Aluminum, Inc., 25 F.3d at 1179. Under Rule 24(a)(2), the

District Court must permit a party to intervene when he “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.” A litigant seeking to

intervene under Rule 24(a)(2) must establish

       1) a timely application for leave to intervene, 2) a sufficient interest in the
       underlying litigation, 3) a threat that the interest will be impaired or affected by the
       disposition of the underlying action, and 4) that the existing parties to the action do
       not adequately represent the prospective intervenor’s interests.

Liberty Mut. Ins. Co. v. Treesale, Inc., 416 F.3d 216, 220 (3d Cir. 2005). The District

Court noted that Atuahene was not a party to the note or mortgage and denied the motion

to intervene on the ground that Atuahene’s interest was insufficient to warrant


                                               3
intervention. We agree.

       Atuahene argued that he has an interest in the property as Manu’s husband.

However, he has not shown that his wife will not adequately represent any such shared

interest. He further asserted that his company, DaKa Info System Corp., (DaKa) put a

junior mortgage on the property in 2004. However, it appears that this mortgage was not

recorded until over two years later on June 12, 2006, shortly before the foreclosure

proceeding was filed. Atuahene asserted that DaKa then transferred part of its mortgage

interest to him and Global Realty (Global). However, this transfer was not recorded until

November 8, 2007, after the foreclosure judgment had been entered. Manu also

purportedly transferred two percent of her interest in the property to Global in November

2007. Atuahene asserted that Global has an equity interest in the property and it filed for

bankruptcy in January 2008. Thus, it appears that the companies’ alleged interests in the

property were created in bad faith in order to frustrate the scheduled sheriff’s sales. In

fact, the United States Bankruptcy Court for the Eastern District of Pennsylvania found

that Global’s bankruptcy petition was filed in bad faith. Moreover, to the extent that

DaKa and Global have any interest in the property, Atuahene cannot represent the

companies’ interest because he is not an attorney. Rowland v. California Men’s Colony,

506 U.S. 194, 201-02 (1993)(“It has been the law for the better part of two centuries . . .

that a corporation may appear in the federal courts only through licensed counsel. As the

courts have recognized, the rationale for that rule applies equally to all artificial entities.”)

The District Court did not abuse its discretion in denying Atuahene’s motion to intervene

                                               4
as a matter of right.

       Because Atuahene does not have any interest in the litigation, the District Court

did not violate his constitutional rights when it denied his motion to intervene or file a

complaint. Atuahene argues that the modified filing injunction entered against him in

2001 does not apply to motions to intervene. We disagree. The injunction prohibits

Atuahene from filing a new proceeding in the District Court. Atuahene may not

circumvent the injunction against his filing new cases without permission by seeking

intervention in cases brought by another party.

       For the above reasons, we will affirm the District Court’s May 21, 2008 order.




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