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Montoya v. Nationstar Mortgage, LLC

United States District Court, M.D. Florida, Orlando Division

November 9, 2017

JUAN G. MONTOYA and MONICA P. OLIVARI, Plaintiffs,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          ORDER

          THOMAS B. SMITH, UNITED STATES MAGISTRATE JUDGE

         This case comes before the Court without oral argument on Defendant Nationstar's Motion to Strike Plaintiffs' Jury Trial Demand (Doc. 24). Plaintiffs Juan G. Montoya and Monica P. Olivari have filed a response in opposition to the motion (Doc. 29), and Nationstar has filed a reply (Doc. 35).

         Background

         The mortgage on Plaintiffs home is held by Deutsche Bank National Trust Company as Trustee for the Certificateholders of HIS Asset Securitization Trust 2006-HE2, and serviced by Nationstar (Doc. 1, ¶ 17-18; Doc. 1-2 at 48-49). In 2008, Deutsche Bank filed suit to foreclose the mortgage (Doc. 1, ¶ 15). Plaintiffs allege that when the case went to trial in 2014, Nationstar, as servicer on behalf of Deutsche Bank, took a voluntary dismissal (Id., ¶ 18; Doc. 1-2 at 52). This resulted in a finding by the trial court that Plaintiffs were the prevailing party and they were awarded approximately $20, 000 in attorney's fees and costs (Id., ¶ 19). According to Plaintiffs, Nationstar paid the fee and cost award (Id.).

         Plaintiffs allege that after Nationstar paid their fees and costs and the fees and costs owed to the lawyers representing Deutsche Bank, it added those sums, together with $1, 061 in property inspection fees to the mortgage debt (Id., ¶¶ 22, 29). Plaintiffs believe that the property inspection fees were incurred primarily in connection with the foreclosure action in which they prevailed (Id., ¶ 29).

         Between January and May 2017, Nationstar sent Plaintiffs “dunning letters” in an attempt to collect the debt secured by the mortgage (Doc. 1-3 at 14, 17, 21, 31). Plaintiffs aver that these letters included in the amount due, the legal fees and property inspection fees for the foreclosure case (Id.).

         Plaintiffs contend that in April, 2017, Nationstar, as attorney-in-fact for Deutsche Bank, caused a second foreclosure action to be filed against them (Doc. 1, ¶ 20). In that lawsuit, Deustche Bank allegedly seeks the legal fees and property inspection fees from the first foreclosure case (Id., ¶ 21).

         In May, 2017, Plaintiffs requested a payoff letter and validation of the debt (Id., ¶ 28). The law firm representing Deutsche Bank in the second foreclosure action provided a response (Doc. 1-3 at 107). According to Plaintiffs, the response includes the attorney's fees and property inspection fees from the first foreclosure case (Id.). Plaintiffs allege that the information in the response was provided by Nationstar (Doc. 1, ¶ 29).

         Plaintiffs maintain that because they prevailed in the first foreclosure case, the fees and costs Nationstar incurred in that action cannot lawfully be added to the mortgage debt (Id., ¶ 29). Now, Plaintiffs are suing Nationstar in this Court for violation of the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e(2), 1692e(10) and 1692f; the Florida Consumer Collection Practices Act, Fla. Stat. § 559.72(9); and breach of contract (Id.). Plaintiffs have informed the Court that the breach of contract claim is due to be dismissed but it still remains in the case (Doc. 29 at 2).

         Plaintiffs request a trial by jury on their claims against Nationstar (Id., at 26). Nationstar has moved the Court to strike the jury trial demand based upon the following language in the mortgage:

Jury Trial Wavier. 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.

(Doc. 1-2 at 14).

         Discussion

         The right to a trial by jury, although protected by the Seventh Amendment, can be constitutionally waived by knowing and voluntary agreement. Milsap v. Cornerstone Residential Mgmt., Inc., No. 05-60033-CIV-MARRA/JOHNSON, 2007 WL 965590, at *1 (S.D. Fla. Mar. 28, 2007) (collecting cases). Because Plaintiffs do not dispute the validity ...


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