United States District Court, M.D. Florida
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Motion for
Reconsideration of Order Denying Motion to Strike Jury Demand
(Doc. 104) filed by the Defendant, Rushmore Loan Management
Services, LLC (“Rushmore”), and the Response in
Opposition (Doc. 106) filed by the Plaintiffs.
April 5, 2005, Julie O'Steen executed a Note in the
amount of $82, 400 with Wells Fargo Home Mortgage,
Inc., secured by a mortgage which was
contemporaneously executed by both Julie O'Steen and her
spouse, Christopher O'Steen. Penno Decl., Doc. 84-1 at 1.
The Mortgage document contained a provision entitled
“Jury Trial Waiver, ” which reads as follows:
The Borrower hereby waives any right to a trial by jury in
any action, proceeding, claim, or counterclaim, whether in
contract or tort, at law or in equity, arising out of or in
any way related to this Security Instrument or the Note.
18-2 at 17. That particular page of the Mortgage document was
initialed by the Plaintiffs, and their signatures appear at
the end of the Mortgage document. Id. at 17-18.
Rushmore apparently became the loan servicer for the Mortgage
on April 5, 2016. Sutton Aff., Doc. 82 at 4. The subject
property was sold to a third party at a foreclosure auction
on March 1, 2017. See Homeowner's Obj. to Sale,
Doc. 81-8 at 2. However, it is unclear what roles Rushmore
and Wells Fargo played with respect to the ultimate
foreclosure sale. It appears that Rushmore was the
Plaintiffs' loan servicer during the time leading up to
foreclosure. Still, Wells Fargo moved to reset the
foreclosure sale on May 23, 2016, after it alleges it was no
longer servicing the Plaintiffs' loan. See Mot.
to Reset Foreclosure Sale, Doc. 81-6 at 2-3.
March 15, 2017, the Plaintiffs filed their Second Amended
Complaint (Doc. 43), alleging six counts: Count I alleges
breach of contract by Wells Fargo; Count II alleges breach of
contract by Rushmore; Count III alleges violation of
Regulation X, 12 C.F.R. § 1024.41(d) by Wells Fargo;
Count IV alleges violation of Regulation X, 12 C.F.R. §
1024.41(g) by Wells Fargo; Count V alleges violation of
Regulation X, 12 C.F.R. § 1024.41(g) by Rushmore; and
Count VI seeks declaratory relief against Rushmore. On May
12, 2017, this case was transferred from the Tampa Division
to the Orlando Division. Doc. 72. The Court granted summary
judgment in favor of Rushmore as to Count II, and denied
summary judgment on Counts V and VI against Rushmore.
filed the Motion to Strike the Plaintiffs' Jury Trial
Demand on April 28, 2017. Doc. 66. The Court granted Wells
Fargo's Motion to Strike the Plaintiffs' Jury Trial
Demand on October 13, 2017. Doc. 102. However, the Court
denied Rushmore's Motion to Strike the Plaintiffs'
Jury Trial Demand, because Rushmore failed to sufficiently
explain why it was entitled to invoke the waiver despite its
non-party status. Doc. 103.
October 23, 2017, Rushmore filed a Motion for Reconsideration
of Order Denying Motion to Strike Jury Demand. Doc. 104. The
O'Steens filed a Response in Opposition on October 31,
2017. Doc. 106.
Rushmore had argued that, as the loan servicer, it is an
intended third party beneficiary of the mortgage contract,
and, thus, it should be able to invoke the waiver. In the
Motion for Reconsideration, Rushmore argues that it is
entitled to invoke the waiver because it is an “agent
of the owner of the loan.” Mot. at 1. There are
cases from the Middle District of Florida that indicate
agents of signatories, successors, and assignees to mortgage
contracts are entitled to enforce jury trial waiver
provisions found in those mortgage contracts. See
DeBoskey v. SunTrust Mortgage, Inc., No. 8:14cv1778,
2017 WL 4083557, at *15 (M.D. Fla. Sept. 14, 2017) (“As
such, the jury trial waiver is enforceable by those
defendants who are signatories and successors and assignees
of the Mortgage contract and their employees/agents.”);
Andre v. Sellstate Realty Sys. Network, Inc., No.
2:09cv503, 2010 WL 3259415, at *3 (M.D. Fla. July 30, 2010),
report and recommendation adopted, No. 2:09cv503,
2010 WL 3259413 (M.D. Fla. Aug. 18, 2010). In light of those
cases, Court sees no rational reason why Rushmore would be
unable to invoke the jury trial waiver provision if Rushmore
was in fact an agent of the owner of the loan. However,
Rushmore does not explain why the Court should consider it an
agent of the owner of the loan. Instead, Rushmore simply
claims, without any citation, that “[t]he O'Steens
have conceded that Rushmore is an agent for the owner.”
Mot. at 5. Rushmore's conclusory statements do not
provide the Court with enough information to make a finding
as to whether Rushmore is entitled to invoke the waiver.
Accordingly, Rushmore has once again failed to show that the
Plaintiffs' jury trial demand should be stricken.
consideration of the foregoing, it is hereby
that Rushmore's Motion for Reconsideration of Order
Denying Motion to Strike ...