Harrington v. Roundpoint Mortgage Servicing Corporation et al

Filing 28

ORDER denying without prejudice 22 Defendants' Motion to Strike Plaintiff's Jury Trial Demand. Defendants have until September 14, 2015, to file an amended motion with documentation that authenticates the attached mortgage. Signed by Judge Sheri Polster Chappell on 9/1/2015. (LMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

LARRY HARRINGTON,
Plaintiff,
v.

Case No: 2:15-cv-322-FtM-38MRM

ROUNDPOINT MORTGAGE
SERVICING CORPORATION and
MULTIBANK 2010-1 SFR
VENTURE, LLC,
Defendants.
/
ORDER1
This matter comes before the Court on Defendants RoundPoint Mortgage
Servicing Corporation and Multibank 2010-1 SFR Venture, LLC's Motion to Strike
Plaintiff's Jury Trial Demand (Doc. #22) filed on July 17, 2015. Plaintiff Larry Harrington
filed a Response in Opposition (Doc. #26) on July 29, 2015. The matter is ripe for review.
Background2
This action arises out of improper debt collection efforts. Plaintiff Larry Harrington
(“Harrington”) is a debtor who executed a mortgage and note for a residential property in
2006. (Doc. #1 at 6). Defendants RoundPoint Mortgage Servicing Corporation and

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2 This background section is derived, in its entirety, from Plaintiff Larry Harrington’s Complaint (Doc. #1).

Multibank 2010-1 SFR Venture, LLC (collectively hereinafter referred to as “RoundPoint”)
are the servicer and owner of that mortgage, respectively. (Doc. #1 at 3). After executing
the mortgage at issue, Harrington fell behind on his payments, leading RoundPoint to
begin debt collection efforts against him. (Doc. #1 at 7). These efforts included thousands
of harassing phone calls to Harrington’s cellphone initiated using an auto dialer and, on
some occasions, a prerecorded voice message. (Doc. #1 at 7). This is problematic for
several reasons.
First, the Telephone Consumer Protection Act (“TCPA”) prohibits calls to a
cellphone made using an auto dialer or a prerecorded voice unless prior consent is
obtained. (Doc. #1 at 7-11). And Harrington did not consent to RoundPoint calling his
cellphone because RoundPoint is not an original party to the mortgage, but rather a
purchaser and assignee. (Doc. #1 at 7-11). Second, the Florida Consumer Collection
Practices Act (“FCCPA”) prohibits willfully communicating with a debtor or any member
of their family with such frequency as can reasonably be expected to harass them. (Doc.
#1 at 11-12). Harrington believes that receiving phone calls for four years initiated by an
auto dialer or using a prerecorded message, sometimes multiple times a day, constitutes
such frequency that RoundPoint could have reasonably expected to harass him. (Doc.
#1 at 11-12). Based on these facts, Harrington asserts two counts alleging violations of
the TCPA (Count 1) and the FCCPA (Count 2). (Doc. #1).
Discussion
RoundPoint seeks to strike the jury demand asserted in Harrington’s Complaint on
the basis that Harrington waived this right when he executed the mortgage at issue. To

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support this request, RoundPoint provides a copy of the mortgage with the waiver
included, which contains a jury trial waiver. That waiver reads, in full:
Jury Trial Waiver. 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. #22-1 at 15, ¶ 25) (emphasis in original). RoundPoint believes the underlying
claims fall within the gambit of this waiver because they “arise out of” and are “related” to
collecting the debt described in the security instrument and note.
Before addressing this argument, Harrington raises an issue that the Court finds
persuasive: There is no evidence that the attached mortgage is authentic. Harrington has
not admitted the attached mortgage is authentic. Nor has RoundPoint provided any
testimony, in the form of an affidavit or otherwise, averring the attached mortgage is
authentic either. Instead, RoundPoint simply provides only the attached mortgage and
asks the Court to take judicial notice of this document pursuant to Federal Rule of
Evidence 201. But because this document’s authenticity is disputed, judicial notice is not
proper. RoundPoint must either provide the Court with an affidavit authenticating the
attached mortgage or with a certified copy of the attached mortgage. Until it does so, the
instant Motion must be denied without prejudice.
Accordingly, it is now
ORDERED:
1. Defendants' Motion to Strike Plaintiff's Jury Trial Demand (Doc. #22) is DENIED
without prejudice.
2. Defendants have until September 14, 2015, to file an amended motion with
documentation that authenticates the attached mortgage.

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DONE and ORDERED in Fort Myers, Florida, this 1st day of September, 2015.

Copies: All Parties of Record

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