Wells Fargo COVID Forbearance

NOT RECOMMENDED FOR PUBLICATION File Name: 26a0441n.06 Case No. 26-3216 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT In re: WELLS FARGO COVID FORBEARANCE FILED SETTLEMENT LITIGATION Nov 02, 2026 __________________________________________ KELLY L. STEPHENS, Clerk PAMELA DELPAPA et al., ) Plaintiffs-Appellees, ) ON APPEAL FROM THE UNITED ) STATES DISTRICT COURT FOR KENNETH ROGERS and KAYLA ) THE SOUTHERN DISTRICT OF ROGERS, ) OHIO Proposed-Intervenors-Appellants, ) ) OPINION v. ) ) WELLS FARGO BANK, N.A. et al., ) ) Defendants-Appellees. ) Before: READLER, DAVIS, and BLOOMEKATZ, Circuit Judges. READLER, Circuit Judge. Upon learning that Wells Fargo had settled a class action suit regarding a COVID-19 mortgage forbearance program, spouses Kenneth and Kayla Rogers sought to intervene in the litigation, asserting that they fell within the class definition yet were wrongly excluded from the class. The district court denied their motions to intervene and likewise denied their motion for an evidentiary hearing. We see no error on either count and affirm. No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement I. In the early days of the COVID-19 pandemic, Wells Fargo Bank provided mortgage forbearances to certain customers. Not all welcomed the practice. Some affected customers responded by filing putative class action suits alleging that Wells Fargo placed their mortgages into forbearance without authorization or adequate informed consent. Following consolidation of those suits and nearly four and a half years of litigation, the district court approved a settlement agreement that resolved the matter. Of the 400,000 class members, none raised a substantive objection to the settlement. Kalya Rogers has held a Wells Fargo serviced mortgage since April 2018. Her account entered the Wells Fargo forbearance program at the end of April 2020. In January 2025, while performing online research about Wells Fargo, Kayla and her husband Kenneth discovered the just-described settlement, which had been approved a month earlier. Thinking that they should have been included as members of the settlement class, the couple contacted class counsel only to be told that their exclusion from the settlement was not in error. Three months later, the Rogerses moved to intervene in the litigation, invoking Federal Rule of Civil Procedure 24. The settling parties responded, explaining why, in the parties’ view, the couple did not fall within the class definition. Believing that the settling parties had provided them with insufficient information, the Rogerses also moved for an evidentiary hearing. The settling parties opposed all motions, providing two sworn declarations in support. The district court denied all motions. II. On appeal, the Rogerses challenge the district court’s decision denying their motions to intervene as a matter of right under Rule 24(a)(2). They likewise contest the district court’s 2 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement decision denying their request for an evidentiary hearing, which they say would have bolstered their request to intervene. We take those issues in turn. A. Intervention. We begin with the motions to intervene under Rule 24(a)(2). To be afforded intervention in this setting, the Rogerses must establish four elements. One, that their request was timely. Two, that they maintain a substantial legal interest in the subject matter of the case. Three, that their ability to protect their interest will be impaired absent intervention. And four, that the existing parties inadequately protect the Rogerses’ interest. Fed. R. Civ. P. 24(a)(2); Est. of Lewis ex rel. Duran v. City of Columbus, 158 F.4th 814, 822 (6th Cir. 2025). Unless all four elements are satisfied, the Rogerses’ motions to intervene fail. United States v. Michigan, 68 F.4th 1021, 1024 (6th Cir. 2023). The district court denied the Rogerses’ motions. We review that decision de novo, except for the question of timeliness, which we review for abuse of discretion. Id.; see also Coal. to Def. Affirmative Action v. Granholm, 501 F.3d 775, 779 (6th Cir. 2007) (addressing Fed. R. Civ. P. 24(a)(2)). An abuse of discretion occurs only when “we are left with the definite and firm conviction that” the district court “committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors or where the trial court improperly applies the law or uses an erroneous legal standard.” Coal. to Def. Affirmative Action, 501 F.3d at 779 (citation modified). Timeliness. Whether the Rogerses were timely in their effort to intervene as of right turns on yet another set of factors, this time five: the point to which the suit had progressed when the Rogerses sought to intervene; the purpose for intervening; the length of time the Rogerses knew or should have known of their interest in the case before intervening; any prejudice to the settling parties tied to the timing of the intervention; and the existence of unusual circumstances militating 3 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement against or in favor of intervention. Michigan, 68 F.4th at 1024–25. Weighing these factors, the district court found the Rogerses’ motions timely. In re Wells Fargo Covid Forbearance Settlement Litig., No. 2:24-cv-1026, 2026 WL 710219, at *3 (S.D. Ohio Mar. 13, 2026). Because the district court correctly found that the Rogerses had failed to meet their burden on the remaining Rule 24(a)(2) requirements, it is unnecessary to disturb this finding on appeal. Nonetheless, there are compelling reasons to conclude that the Rogerses’ motions were untimely. As to the first and fourth factors, the district court acknowledged competing equities. On the one hand, the “case is at a late stage,” but, on the other, the Rogerses “wasted no time moving to intervene” once they learned of the settlement. Id. Between those two observations, the first is the far more important factor. When extensive progress has been made in the district court by the time an intervention motion surfaces, that reality often dooms the attempt to intervene. Michigan, 68 F.4th at 1025 (citing United States v. Tennessee, 260 F.3d 587, 592–93 (6th Cir. 2001)). And extensive progress describes today’s case. By the time the Rogerses sought to intervene in the class action, nearly five years of litigation had passed, culminating in a court approved settlement. True, as the district court recognized, the Rogerses were relatively diligent in that they moved to intervene within a few months of learning about the settlement. Yet, again, that consideration takes a back seat to assessing the point to which the suit progressed when intervention was sought. United States v. City of Detroit, 712 F.3d 925, 931 (6th Cir. 2013) (stating that “the stage of the proceedings and the nature of the case” govern the analysis). And by that point, not only had a settlement been approved, but the settlement administrator had also begun making payments to class members. See In re Auto. Parts Antitrust Litig., End-Payor Actions, 33 F.4th 894, 901 (6th Cir. 2022) (holding that a fairness hearing that led to settlement approval indicates litigation is in its final stages (citing In re S. Ohio Corr. Facility, 24 F. App’x 520, 532 4 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement (6th Cir. 2001))). So allowing the Rogerses to intervene at that point likely would have prejudiced the settling parties. We typically do not allow intervention in these circumstances. See, e.g., In re Auto. Parts, 33 F.4th at 901–02 (recognizing that class action intervention may be untimely when there “remains very little for the district court to do” and intervention would require revisiting issues that have long been resolved, like class definition (citation modified)); Jordan v. Mich. Conf. of Teamsters Welfare Fund, 207 F.3d 854, 862 (6th Cir. 2000) (holding that the “failure to intervene before final judgment . . . renders the motion untimely”); Tennessee, 260 F.3d at 592– 93 (concluding that the stage of proceedings factor weighs against a movant when, at the time of the proposed intervention, “[a]ll substantive issues had been resolved”). The remaining timeliness factors also largely weigh against intervention. As discussed in more detail with respect to the remaining factors for Rule 24(a)(2) intervention, see infra pp. 6–8, the Rogerses are not class members. See In re Wells Fargo, 2026 WL 710219, at *4 (district court instructing that the class definition dictates the members of the class “for better or for worse”). Challenging the class definition, a “core premises of the litigation,” and seeking unrelated evidence from the settling parties, as the Rogerses attempt to do, are not compelling grounds justifying a late intervention. Detroit, 712 F.3d at 931–32 (“[P]arties should not be able to join at a late stage and re-litigate issues that they watched from the sidelines.”). And because the Rogerses did not release their claims against Wells Fargo, the couple seemingly remains free to pursue their own action without prejudice. See infra pp. 8–9. That leaves little on the other side of the timeliness ledger. As the Rogerses see things, the purported intervention raises unusual circumstances in that the “practical reality of [their] retained right” to pursue a separate suit against Wells Fargo will be hindered since they are “unable to identify any outside counsel willing to take [their] case.” Appellant Br. 19. Perhaps so. Yet the 5 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement Rogerses’ lack of counsel has not, at least so far, prejudiced their ability to pursue litigation, as their intervention effort reflects. And because the Rogerses are not class members, see infra pp. 6–8, and have not released any claim against Wells Fargo, see infra pp. 8–9, they are not otherwise prejudiced in pursuing a claim in a future action. But as to their filings here, because the Rogerses are unable to meet their burden on the remaining three factors, there is no need to decide whether the district court abused its discretion in concluding that their motions to intervene were timely. Substantial Legal Interest & Impairment. Regardless of whether the Rogerses cleared the timeliness bar, the fact that they are not class members is a dispositive basis for denying intervention. Rule 24(a)(2) requires the Rogerses to demonstrate a “direct and substantial” interest in the litigation. Est. of Lewis, 158 F.4th at 823 (citation modified). To do so, they must make two showings. One, that they are real parties in interest to the transaction in question, and two, that they possess a claim that cannot be properly raised in subsequent litigation. Id. 1. Turn, then, to the terms of the approved settlement agreement, beginning with the class definition. To be considered a member of the settlement class, a claimant must have had a mortgage serviced by Wells Fargo that, between March 1, 2020, and December 31, 2021, was placed into a COVID mortgage forbearance “Without Adequate Informed Consent.” Mot. Ex. A § I(8), R. 240-1, PageID 1021. Because Kenneth Rogers does not have a Wells Fargo serviced mortgage and Kayla Rogers’s forbearance was not “Without Adequate Informed Consent,” neither meet that definition. Start with Kayla. Based on the filings in the district court, all seem to agree that Wells Fargo serviced her mortgage and placed it into a COVID mortgage forbearance during the relevant time period. Second Stevens Declaration, R. 310-1, PageID 4280–94. That leaves it to us to determine whether that action occurred “Without Adequate Informed Consent” by Kayla. 6 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement The settlement agreement helps contextualize the consent requirement. In defining the phrase “Without Adequate Informed Consent,” the agreement instructs that “the mortgage must have entered forbearance via Wells Fargo’s online banking or interactive voice response portals before May 11, 2020.” Mot. Ex. A § I(72), R. 240-1, PageID 1028–29. Kayla’s account entered forbearance via Wells Fargo’s online banking portal at the end of April 2020. Assuming, for today’s purpose, that Kayla’s mortgage meets this preliminary element, we note that the consent requirement goes on to identify characteristics that, if applicable, indicate that a forbearance was not “Without Adequate Informed Consent” and exclude a customer from the class. Kayla appears to possess two. The first is the fact that she “requested a forbearance extension” after entering forbearance. R. 240-1, PageID 1028–29. The record shows that once Kayla’s mortgage went into forbearance, four extensions were requested on her account via the online system. Kayla contests whether she requested the extensions, but she offers no evidence to back up the claim. Because the burden falls on her to demonstrate why she is entitled to intervene, that shortcoming is dispositive. See Michigan, 68 F.4th at 1024 (“A party seeking intervention as of right under Rule 24(a)(2) must show [all intervention criteria are met].”); Lathfield Invs., LLC v. City of Lathrup Village, 136 F.4th 282, 297 (6th Cir. 2025) (“Conclusory statements are no substitute for evidence.”). A second exclusion encompasses those customers who “made no payments from the date that the forbearance was requested and continuing during the entire forbearance period.” Mot. Ex. A § I(72), R. 240-1, PageID 1028–29. Here too, Kayla is captured by the exclusion’s terms. She made no payments that were applied to her mortgage during the forbearance period, a point she does not appear to dispute. Instead, she suggests that Wells Fargo was to blame for those non- payments because the bank turned off her automatic ACH mortgage payments. But either way, 7 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement the language of the settlement agreement abrogates this exclusion only for customers whose automatic payments were stopped because they “were set up on forbearance before April 15, 2020.” Mot. Ex. A § I(72), R. 240-1, PageID 1028–29. Kayla’s account was placed in forbearance later that month, making her non-payment another basis for excluding her from the class definition. Id.; First Stevens Declaration, R. 307-1, PageID 4134–35. Kenneth has an even weaker claim to class membership because he is not a co-borrower on Kayla’s mortgage. Without a mortgage serviced by Wells Fargo, Kenneth cannot be part of the class. That Kenneth and Kayla are married does not change this conclusion, nor does the fact that Kenneth communicated with Wells Fargo regarding the mortgage. See Appellant Br. 20. None of this overrides the dispositive fact that Kayla is the only individual named on the mortgage. All things considered, the Rogerses have not demonstrated an interest in this litigation consistent with the class definition. 2. While that reality ends their request to intervene, it is not necessarily the end of the road. At bottom, the Rogerses appear to be saying that they maintain a right to recover against Wells Fargo due to the bank’s alleged mishandling of Kayla’s mortgage. Appellant Br. 8. As just explained, the class definition forecloses the Rogerses’ participation in this litigation. But we disagree with the Rogerses that the settlement agreement bars their ability to bring a cause of action in separate litigation. To satisfy the impairment absent intervention element of Rule 24(a)(2), the Rogerses must demonstrate that denying intervention could impair a substantial legal interest. Est. of Lewis, 158 F.4th at 827 (explaining that the impairment test is satisfied where the case’s resolution would leave the proposed intervenor at a “practical disadvantage in protecting its interest” (citation modified)). They have not done so. Because the Rogerses are not class members and have not released any claims in another capacity, we see no reason why the Rogerses’ legal 8 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement interests are impaired by this settlement. Unlike other matters that have come before us, the settlement does not affect the Rogerses’ ability to bring future challenges, nor have the Rogerses identified any unique concerns from denying them intervention in this litigation. See, e.g., Wineries of the Old Mission Peninsula Ass’n v. Township of Peninsula, 41 F.4th 767, 774 (6th Cir. 2022) (determining impairment of an interest when a zoning ordinance is enjoined as unconstitutional or preempted by state law); Ne. Ohio Coal. for Homeless & Serv. Emps. Int’l Union, Loc. 1199 v. Blackwell, 467 F.3d 999, 1007–08 (6th Cir. 2006) (recognizing an adverse ruling could hinder Ohio’s ability to litigate the state’s absentee ballot voter identification laws and implicates a time sensitive concern); Mich. State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997) (highlighting an adverse ruling in the district court could have preclusive effects and hinder future efforts to litigate the validity of Michigan’s system for regulating campaign finance); Ams. United for Separation of Church and State v. City of Grand Rapids, 922 F.2d 303, 305–06 (6th Cir. 1990) (recognizing impairment absent intervention due to the time sensitive nature of a denial of intervention for a potential intervenor’s efforts to display a menorah on public property during Hanukkah). As pro se plaintiffs, the Rogerses understandably may be frustrated with our class action and intervention procedures. Nonetheless, we must apply those rules consistent with their design and with the settling parties’ negotiated class action settlement. We do not pass judgment on whether the Rogerses may pursue claims against Wells Fargo outside of this litigation, either in singular or class form, other than to say that today’s resolution should not encumber those efforts. Adequate Representation. We can briefly dispose of the final factor, adequate representation. The Rogerses bear the burden of proving that there is potential for their interests to be inadequately represented by the class litigants. United States v. Michigan, 424 F.3d 438, 9 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement 443–44 (6th Cir. 2005). They have not done so. Keeping in mind that the Rogerses are not members of the class, the adequacy of the class representation is irrelevant. That reality is insufficient to establish inadequate representation. In sum, the Rogerses fail to satisfy the Rule 24(a)(2) factors. Accordingly, we affirm the district court’s denial of their motions to intervene as of right. B. Evidentiary Hearing. In the district court, the Rogerses requested an evidentiary hearing to allow them to develop evidence regarding their eligibility within the class definition. The district court denied that request, a determination we review for an abuse of discretion. See Alley v. Bell, 307 F.3d 380, 389 (6th Cir. 2002); see also Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 205 (7th Cir. 1982) (“Due process does not mandate a full evidentiary hearing in every situation where a liberty or property interest could be affected.”). Consider the somewhat analogous setting where a party has already successfully intervened in a class proceeding and then seeks an evidentiary hearing or other similar efforts to develop a record. In that posture, we have made clear that the intervenor does not have a “broad right . . . to a quasi-trial” regarding matters related to a proposed class action settlement agreement. Tenn. Ass’n of Health Maint. Orgs., Inc. v. Grier, 262 F.3d 559, 567 (6th Cir. 2001). The intervenor thus must demonstrate more than “unsupported suppositions” before the district court will honor its evidentiary request. Geier v. Alexander, 801 F.2d 799, 809 (6th Cir. 1986) (citation modified); see also Int’l Union, United Auto., Aerospace, & Agr. Implement Workers of Am. v. Gen. Motors Corp., 497 F.3d 615, 635 (6th Cir. 2007) (stating that a district court “need grant objectors discovery only if they can make a colorable claim that the settlement should not be approved”); Geier, 801 F.2d at 809 (requiring objectors to make “a clear and specific showing that vital material 10 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement was ignored by the District Court . . . to hold an additional evidentiary hearing on the propriety of the settlement” (citation modified)). That is especially true when an informed and just fairness hearing has already occurred. See Tenn. Ass’n of Health Maint. Orgs., 262 F.3d at 567. For individuals like the Rogerses who have not yet intervened in the underlying class action, the right to an evidentiary hearing is arguably even weaker, especially when, as here, a final settlement has already been approved. After all, at that stage, the proposed intervenors must demonstrate not only a need for discovery related to their intervention request, but also that their request will not disrupt a settlement already accepted (in this case, without substantive objection by 400,000 class members). Cf. Vassalle v. Midland Funding LLC, 708 F.3d 747, 760 (6th Cir. 2013) (holding that proposed intervenor could not intervene for the purpose of conducting discovery three weeks prior to a fairness hearing). The Rogerses have not done so. The facts are uncontested. See Kneeland v. Nat’l Collegiate Athletic Ass’n, 806 F.2d 1285, 1289 (5th Cir. 1987) (stating a court may deny a request for an evidentiary hearing when it is clear from the record that the movant is not entitled to intervene); Shea v. Angulo, 19 F.3d 343, 347 n.3 (7th Cir. 1994) (noting that no evidentiary hearing is required if a proposed intervenor’s allegations, taken as true, fail to establish a right to intervene). Wells Fargo provided sworn declarations, filed under penalty of perjury. See 28 U.S.C. § 1746. In those documents, the bank addressed Kayla’s ownership of her mortgage, the timing and the actions taken to request a forbearance and forbearance extensions, and the nonpayment during the forbearance period. In the absence of other evidence or the suggestion of a dispute over what has been submitted, those declarations are a fair basis for the district court to evaluate the settlement reached by the parties and approved by the court and its applicability to the Rogerses. See Associação Brasileira de Medicina de Grupo v. Stryker Corp., 891 F.3d 615, 621 (6th Cir. 2018) (“[A]ffidavits and 11 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement declarations [are] evidence that a court may properly rely on.”); Detroit, 712 F.3d at 933 (“[T]he district court . . . may reasonably rely on past findings to draw its conclusions.”); BankUnited, N.A. v. Garretson, No. 1:25-CV-190, 2025 WL 2880272, at *2 (S.D. Ohio Oct. 9, 2025) (deciding that proof of a mortgage, promissory note documents, and a sworn declaration are sufficient evidence to determine an evidentiary hearing was unnecessary). In this way, we disagree with the Rogerses’ characterization of the proceedings. Contrary to the Rogerses’ assertion, the settling parties need not provide a specific type of evidence, whether it be “underlying portal records, click-stream data, or contemporaneous customer communications.” Appellant Br. 11. See Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001) (“[D]istrict courts may often be able to determine whether a prima facie [intervention] case is made out by reference to the proposed intervenor’s papers alone; however, we do not foreclose consideration of the pleadings and affidavits of opponents to intervention . . . .”). That puts the evidentiary shoe on the other foot. The burden to demonstrate the need for an evidentiary hearing, remember, rests on the Rogerses, not Wells Fargo. See Michigan, 68 F.4th at 1024–25 (stating that the burden falls on the party seeking intervention to prove the Rule 24(a)(2) criteria are met). Nor do the declarations amount to a mere “employee recitation of [Wells Fargo’s] system’s output.” Appellant Br. 12. Rather, they go beyond mere conclusionary statements by confirming underlying facts that resolve the intervention motions. And while the Rogerses were free to refute the settling parties’ declarations with their own evidence, they provided none. See Disc. Tobacco City & Lottery, Inc. v. United States, 674 F.3d 509, 567 (6th Cir. 2012) (showing that a party may rely on expert declarations to refute opposing evidence); see also Tenneco Auto. Operating Co. v. Kingdom Auto Parts, 410 F. App’x 841, 853 (6th Cir. 2010) (explaining that the district court retained the 12 No. 26-3216, In re: Wells Fargo COVID Forbearance Settlement discretion to accept or reject the declaration while the plaintiff remained empowered to counter it with independent evidence). At most, the Rogerses provided vague guesses regarding undiscovered documents, which do not compel a district court to conduct an evidentiary hearing. Cf. Surles ex rel. Johnson v. Greyhound Lines, Inc., 474 F.3d 288, 305 (6th Cir. 2007) (stating that a plaintiff may not be permitted “to go fishing” for production and discovery requests (citation modified)); see also Likas v. Life Ins. Co. of N. Am., 222 F. App’x 481, 485 (6th Cir. 2007) (confirming that the district court did not abuse its discretion by denying plaintiffs’ motion to compel production of an administrative record “simply on a hunch”). We thus agree with the district court’s decision denying their request. C. Rule 23(e). Lastly, the Rogerses invoke Federal Rule of Civil Procedure 23(e), which addresses the procedures a district court must employ in resolving a proposed settlement, voluntary dismissal, or compromise, to challenge the class definition. They do so seemingly as a way to bolster their Rule 24(a)(2) intervention arguments. But Rule 24(a)(2) does not call on the district court to consider Rule 23(e) concerns (for example, the fairness of a class settlement agreement to class members) in resolving a request to intervene. Put differently, Rule 23(e) permits class members to object to a settlement agreement. Yet the Rogerses are simply non-class-member proposed intervenors who seek to collaterally attack the agreement. So Rule 23(e) affords them no relief. * * * * * We affirm the judgment of the district court. 13