United States District Court, M.D. Florida, Orlando Division
GREGORY A. PRESNELL, UNITED STATES DISTRICT JUDGE.
matter comes before the Court on the Renewed Motion to Strike
Jury Demand (Doc. 121) filed by the Defendant, Rushmore Loan
Management Services, LLC (“Rushmore”) and the
Memorandum of Law in Opposition filed by the Plaintiffs (Doc.
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 seems that Rushmore was the
Plaintiffs' loan servicer during the time leading up to
foreclosure. Still, Wells Fargo appeared to have 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
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. Doc.
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
Court denied the Motion for Reconsideration. Doc. 105.
Although Rushmore claimed that it was the agent of the owner
of the loan, inconsistencies in the evidence prevented the
Court from relying on Rushmore's allegation. As the Court
noted in its Order Denying Reconsideration, the claim that
Rushmore acted as servicer, and thus an agent, for Wilmington
Savings Fund Society, was called into question by evidence
that an attorney purporting to represent Wells Fargo filed a
motion to reset the foreclosure sale in May of 2016, two
months following the alleged servicing transfer. See
O'Steen v. Wells Fargo Bank, N.A., No. 6:17cv849,
2017 WL 4959403, at *2 (M.D. Fla. Nov. 1, 2017). The Court
had evidence that the mortgage had been assigned to
Wilmington Savings Fund Society. But the Court had
conflicting evidence as to who the agent of Wilmington
Savings Fund Society was: it was clear that Wells Fargo no
longer owned the mortgage after the assignment took place,
but it was not at all clear whether Wells Fargo continued to
service the loan, in light of the timing and language of the
motion to reset foreclosure sale.
Rushmore's Entitlement to Enforce the Waiver
November 30, 2017, the Court held a Pretrial Conference. At
that Pretrial Conference, it became clear that, despite the
apparently conflicting evidence, there was no dispute that
Rushmore was acting as the servicer for the assignee of the
mortgage, even while an attorney claiming to represent Wells
Fargo was filing a motion to reset the foreclosure
sale. 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). As the Court previously stated, the “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.” With the
question of servicing resolved, the Court
FINDS that Rushmore, as an agent of the
assignee of the mortgage, is entitled to invoke the jury
trial waiver provision.
Validity of the Waiver Provision
first time, the Plaintiffs argue that “Rushmore has
failed to meet its burden to show the waiver was knowing and
voluntary.” See Doc. 123 at 8. A jury trial
waiver must be knowing and voluntary in order to be valid.
See Bray v. PNC Bank, N.A., 196 F.Supp.3d 1282, 1286
(M.D. Fla. 2016). In making that determination, courts
consider five different factors,  but no one factor is
conclusive, and the number of factors that have been
satisfied does not bind the Court in any way. Madura v.
BAC Home Loans Servicing L.P., 851 F.Supp.2d 1291, 1294
(M.D. Fla. 2012). Instead, courts use the factors to guide
them in determining whether the waiver is
“unconscionable, contrary to public policy, or simply
unfair.” Allyn, 347 F.Supp.2d at 1252. Courts
in the Middle District of Florida have held that the party
seeking to benefit from a jury trial waiver should bear the
burden of showing that the waiver was knowing and voluntary.
See Deleplancque v. Nationstar Mortg., LLC, No.
6:15cv1401, 2016 WL 406788, at *3, n.5 (M.D. Fla. Jan. 14,
2016), report and recommendation adopted, No.
6:15cv1401, 2016 WL 397962 (M.D. Fla. Feb. 2, 2016);