Case 1:13-cv-24291-WJZ Document 23 Entered on FLSD Docket 02/24/2014 Page 1 of 6

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
FORT LAUDERDALE DIVISION
CASE NO.: 13-CV-24291-WJZ
JONATHAN PADILLA,
Plaintiff,
v.
BAYVIEW LOAN SERVICING, LLC
Defendant.
/
DEFENDANTS REPLY TO PLAINTIFFS RESPONSE TO MOTION TO
STRIKE JURY TRIAL DEMAND AND INCORPORATED MEMORANDUM OF LAW
Defendant Bayview Loan Servicing, LLC (Bayview), pursuant to Federal Rules
of Civil Procedure 12(f) and Local Rule 7.1, replies to Plaintiff Jonathan Padillas
(Padilla) Response to Defendants Motion to Strike Jury Demand [ECF 19] and states
as follows:
1.

Padilla does not deny that he voluntarily and knowingly waived his right to

a jury trial in connection with actions arising out of or related to the Mortgage. Rather,
he simply denies that Bayview is entitled to the benefit of that waiver. But applicable
law dictates otherwise.
2.

On July 11, 2011, the Mortgage1 executed by Padilla was assigned to the

Bank of New York Mellon FKA The Bank of New York, as Trustee for the
Certificateholders of the CWMBS Inc., CHL Mortgage Pass-Through Trust 2007-HYB1,

All capitalized terms not otherwise defined herein shall have the meaning ascribed to them in
Bayviews Motion to Strike Jury Trial Demand.

TABAS, FREEDMAN & SOLOFF, P.A. ONE FLAGLER BUILDING, 14 NORTHEAST FIRST AVENUE, PENTHOUSE, MIAMI, FLORIDA 33132 (305) 375-8171

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CASE NO.: 13-CV-24291-WJZ

Mortgage Pass Through Certificates, Series 2007-HYB1 (BONY) by Mortgage

Electronic Registration Systems, Inc., as nominee for Flick Mortgage Investors, Inc.
The Assignment of Mortgage was recorded on August 3, 2011 in the Public Records of
Miami-Dade County, Florida in Official Records Book 27778 at Page 2908. A true and
correct copy of the Assignment of Mortgage is attached hereto as Exhibit 1 and
incorporated herein by reference.
3.

As evidenced by Exhibit A to Padillas Response to Defendant Bayview

Loan Servicing, LLC [sic] Motion to Dismiss and Memorandum of Law [ECF 18],
Bayview notified Padilla on July 15, 2013 that it was the current servicer of the
Mortgage, acting on behalf of BONY.
4.

Yet, Padilla feigns ignorance as to why Bayview could have possibly been

contacting him. But Padillas own records reflect that he was fully aware that Bayviews
attempts to contact him were solely in an effort to have him comply with his obligations
under the Mortgage.

Accordingly, the jury trial waiver contained in the Mortgage,

providing that the parties have waived their right to a jury trial in any proceeding arising
out of or in any way related to the [Mortgage] applies.
5.

And while it is true that Bayview was not a party to the Mortgage, this is of

little import because a servicer of a mortgage may enforce a jury trial waiver contained
in a mortgage. Deutsche Bank Natl Trust Co. v. Foxx, 2013 WL 5291128, at * 10 (M.D.
Fla. 2013) (finding that jury trial demand in counterclaim against mortgagee and servicer
was enforceable as borrowers claims were related to the mortgage); Correa v. BAC
Home Loans Servicing, LP, 2012 WL 1176701, at *15-16 (M.D. Fla. 2012) (finding that
jury trial waiver in mortgage was applicable in action against servicer for alleged

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TABAS, FREEDMAN & SOLOFF, P.A. ONE FLAGLER BUILDING, 14 NORTHEAST FIRST AVENUE, PENTHOUSE, MIAMI, FLORIDA 33132 (305) 375-8171

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CASE NO.: 13-CV-24291-WJZ

violations of the Real Estate Settlement Procedures Act, the Truth in Lending Act and
the Fair Debt Collection Practices Act); Paschette v. Wells Fargo Bank, N.A., 2011 WL
2470314, at *4 (M.D. Fla. 2011) (finding that jury trial waiver in mortgage was applicable
in action against servicer for alleged violations of the Real Estate Settlement
Procedures Act, the Truth in Lending Act and the Florida Consumer Collection Practices
Act).
6.

Moreover, Bayview is entitled to enforce the terms of the jury trial waiver

contained in the Mortgage because [w]here a principal has signed a contract containing
a jury waiver clause, its employees and agents may also enforce the waiver with regard
to claims arising from acts taken within the scope of their employment or agency.
Hamilton v. Sheridan Healthcorp, Inc., 2014 WL 537343, at *3 (S.D. Fla. 2014). And a
loan servicer is unquestionably the agent of the mortgagee. See Cenat v. U.S. Bank,
N.A., 930 F.Supp.2d 1347, 1352 (S.D. Fla. 2013) (finding that a mortgagee may be
liable under the Truth in Lending Act for the actions of its servicer, acting as agent for
the mortgagee).

Accordingly, Bayview is entitled to the benefit of the jury waiver

regarding claims against it for actions taken in connection with its duty to service the
Mortgage on behalf of BONY.
WHEREFORE, Defendant Bayview Loan Servicing, LLC respectfully requests
that this Honorable Court grant its Motion to Strike Jury Trial Demand and grant such
other and further relief as the Court deems just and proper.

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TABAS, FREEDMAN & SOLOFF, P.A. ONE FLAGLER BUILDING, 14 NORTHEAST FIRST AVENUE, PENTHOUSE, MIAMI, FLORIDA 33132 (305) 375-8171

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CASE NO.: 13-CV-24291-WJZ

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished
on this 24th day of February, 2014 via U.S. Mail to Jonathan Padilla, 811 N.E. 199th
Street, #105, Miami, FL 33179.
Respectfully submitted,
/s/ Gary M. Freedman
Gary M. Freedman
Florida Bar No. 727260
Mahra C. Sarofsky
Florida Bar No. 33637
Tabas, Freedman & Soloff, P.A.
Attorneys for Bayview Loan Servicing, LLC
One Flagler Building
14 Northeast First Avenue - Penthouse
Miami, Florida 33132
Telephone: (305) 375-8171
Facsimile: (305) 381-7708
E-mail: service@tabasfreedman.com
E-mail: gfreedman@tabasfreedman.com
E-mail: msarofsky@tabasfreedman.com
E-mail: jgonzalez@tabasfreedman.com

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TABAS, FREEDMAN & SOLOFF, P.A. ONE FLAGLER BUILDING, 14 NORTHEAST FIRST AVENUE, PENTHOUSE, MIAMI, FLORIDA 33132 (305) 375-8171

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