Cruz et al v. Bank of America, N.A.

Filing 87

ORDER granting 71 Motion to Strike Jury Trial Demand in accord with attached order. Signed by Judge William F. Jung on 7/15/2019. (CCB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
PEDRO PABLO COLLAZO CRUZ
and ODALYS RODRIGUEZ,
Plaintiffs,
v.

CASE NO. 8:17-cv-2627-T-02SPF

BANK OF AMERICA, N.A.,
Defendant.
/
ORDER
Upon due consideration of Defendant’s Motion to Strike Jury Trial Demand
(Dkt. 71), Plaintiff’s response (Dkt. 78), and Defendant’s reply (Dkt. 83), the
Court concludes the motion should be granted.
The mortgage executed by Plaintiffs in favor of Defendant contains the
following jury waiver provision:
15. Jury Trial Waiver. 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.
Dkt. 71-1 at 15. Plaintiffs’ fraud claim falls within the scope of the waiver as any
claim “arising out of or in any way related to this” mortgage. See, e.g., Fleeger v.
Wachovia Bank, No. 5:12-cv-294-Oc-32PRL, 2013 WL 1760190, at *3 (M.D. Fla.

Apr. 24, 2013) and other cases cited in the motion (Dkt. 71 at 5). Plaintiffs have
failed to show that Defendant lacks standing as a mortgage servicer to enforce the
jury trial waiver. See cases cited or distinguished at docket 83, pages 1-2. Nor
have Plaintiffs convinced this Court that the jury trial waiver is anything other
than knowing and voluntary, or that Defendant waived its right to contest by
waiting too long.1
Accordingly, Defendant’s Motion to Strike Jury Trial Demand (Dkt. 71) is
granted. Plaintiff’s demand for a jury trial is hereby stricken. This case will
proceed to a bench trial set for the March 2020 trial term commencing March 2,
2020.
DONE AND ORDERED at Tampa, Florida, on July 15, 2019.
s/William F. Jung
WILLIAM F. JUNG
UNITED STATES DISTRICT JUDGE
COPIES FURNISHED TO: Counsel of Record

1

Defendant objected to the jury demand when the parties filed their joint case
management report. Dkt. 48. at 2. By doing so, Defendant did not consent to a trial by
jury. Cf. Affiliati Network, Inc. v. Wanamaker, 1:16-cv-24097, 2017 WL 7311893, at *3
(S.D. Fla. Aug. 21, 2017) (citing cases for proposition that signing case management
report containing jury trial election, without objection, amounts to consent); Roth v.
Nationstar Mortg., LLC, No. 2:15-cv-783-FtM-29MRM, 2016 WL 7473818, at *2 (M.D.
Fla. Dec. 29, 2016) (same). Moreover, Plaintiffs have not demonstrated how they will be
prejudiced. See Acciard v. Whitney, No. 2:07-cv-476-FtM-36DNF, 2011 WL 4902972
(M.D. Fla. Oct. 13, 2011) (granting motion to strike jury trial filed more than a year after
demand was made, and finding judicial economy promoted trying case before court).
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