Jones v. Bank of America, N.A.

Filing 30

ORDER denying 27 Motion to Strike Jury Demand. See Order for details. Signed by Judge Virginia M. Hernandez Covington on 7/27/2012. (KAK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
RANDY JONES,
Plaintiff,

Case No.: 8:12-cv-419-T-33TGW

v.
BANK OF AMERICA, N.A.,
Defendant.
______________________________/
ORDER
This matter comes before the Court pursuant to Defendant
Bank of America, N.A.’s Motion to Strike Jury Demand (Doc. #
27), which was filed on July 16, 2012.

Plaintiff Randy Jones

filed a Response in Opposition to the Motion (Doc. # 29) on
July 27, 2012.

The Court denies the Motion for the reasons

that follow.
Discussion
Plaintiff

brings

this

action

against

Defendant

for

violations of the Florida Consumer Collection Practices Act
and the Telephone Consumer Protection Act.

To summarize,

Plaintiff asserts that Defendant telephoned him, including at
this workplace, eight to twelve times per day, every day, in
an effort to collect a debt from Plaintiff, after Plaintiff
directed Defendant to stop making such calls.

Plaintiff

retained counsel and advised Defendant that Defendant should

contact

counsel,

rather

than

Plaintiff.

The

calls

to

Plaintiff, including those made to his workplace, continued.
Plaintiff included a jury demand in his complaint, which
was filed on February 24, 2012. (Doc. # 1).

Defendant moves

to strike the jury demand on the basis of a jury trial waiver
Plaintiff signed when Plaintiff borrowed from Defendant by
signing a Mortgage and HELOC Mortgage. That jury trial waiver
states, “The Borrower hereby waives any right to 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.”
Defendant contends that Plaintiff’s present consumer
protection

suit

is

“related

to”

the

Mortgage

and

HELOC

Mortgage.

In support of this proposition, Defendant cites

three inapposite cases: Palomares v. Ocean Bank of Miami, 574
So. 2d 1159 (Fla. 3d DCA 1991); Gelco Corp. v. Campanile Motor
Serv., Inc., 677 So. 2d 952 (Fla. 3d DCA 1996); and Vista
Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576 (Fla.
5th DCA 1992).

Although these cases mandate the enforcement

of valid jury trial waivers, the cases do not address the
issue presented here: the scope of such a waiver. In the case
of the present suit, Defendant has failed to present a cogent
argument

in

favor

of

finding
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that

the

present

consumer

protection suit is subject to the jury trial waiver.
This Court has been instructed by the Supreme Court to
“scrutinize[] with the utmost care” any curtailment of the
Seventh

Amendment

right

to

a

jury

trial.

Chauffeurs,

Teamsters, & Helpers, Local No. 391 v. Terry, 494 U.S. 558,
565 (1990).

It is further this Court’s solemn duty to

“jealously guard” the fundamental right to a jury trial and
“indulge every reasonable presumption against waiver.” Jacob
v. City of New York, 315 U.S. 752, 752 (1942); Aetna Ins. Co.
v. Kennedy, 301 U.S. 389, 393 (1937); Burns v. Lawther, 53
F.3d 1237, 1240 (11th Cir. 1995).
Plaintiff asserts that “a foreclosure on property for
failure to pay amounts due and an action for violating
statutes designed to protect consumers from abusive debt
collection practices and cellular telephone calls have nothing
to do with one another.” (Doc. # 29 at 5).

Plaintiff has

supported his position with several helpful cases, including
Dorn v. Bank of America, 8:12-cv-510-T-23TGW (Doc. # 24, filed
October 23, 2012), a case that could not be more similar to
the present action.

In Dorn, the court declined to enforce a

jury trial wavier in the context of a consumer protection
action related to debt collection practices when such jury
trial waiver was contained in a mortgage.
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See also Whigum v.

Heilig-Meyers Furniture, Inc., 682 So. 2d 643, 646 (Fla. 1st
DCA 1996)(“an action to collect a consumer debt is not a
compulsory

counterclaim

to

an

action

under

a

statute

regulating consumer collection practices. . . . The actions do
not ‘arise’ out of the same aggregate of operative facts.”).
Here, Defendant has failed to demonstrate that the jury
trial

waiver

encompasses

Plaintiff’s

present

action.

Therefore, the Court denies the Motion.
Accordingly, it is now
ORDERED, ADJUDGED, and DECREED:
Defendant Bank of America’s Motion to Strike Jury Demand
(Doc. # 27) is DENIED.
DONE and ORDERED in Chambers in Tampa, Florida, this 27th
day of July, 2012.

Copies to:

All Counsel and Parties of Record

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