September 5, 2018
A Lee County (Ft. Myers) Florida Judge yesterday granted the homeowner’s motion to set his case against Bank of America, MERS, and other Defendants for a jury trial over vigorous objection from counsel for the Defendants, who claimed that the right to jury trial had been allegedly “waived”. The Court also denied the Defendants’ Motion to Strike the jury demand. The homeowner is represented by Jeff Barnes, Esq.
The alleged originating lender is the non-existent America’s Wholesale Lender, identified in the Mortgage as a New York corporation. The Note has a claimed endorsement by another entity (Countrywide Home Loans, Inc. d/b/a Americas Wholesale Lender), which is not the original holder or lender identified in the Mortgage, and the Note contains no statement that the lender is a d/b/a of another entity. The Amended Complaint contains claims for Declaratory Relief, Fraud, Equitable Estoppel, Violations of Florida’s Unfair and Deceptive Trade Practices Act, and Quiet Title.
The Complaint, which was filed in 2015, demanded trial by jury as did subsequent amended versions of the Complaint. The Defendants never objected to or moved to strike the jury demand until March of 2018 after the homeowner filed a Motion and Notice to set the case for jury trial pursuant to the demand which was consistently made since 2015.
The Defendants took the position that the demand had been “dropped” as the demand did not appear at the end of the amended versions of the Complaint (in fact, it had been moved to another page thereof and the Defendants apparently failed to read the entire document), and also claimed that they “would have conducted discovery differently” had they known of the jury demand. The Court disagreed. It is of record that the jury demand had been repeated consistently for a period of three (3) years, and the claim of the Defendants that they “did not know” of the demand during the course of discovery was specious given the pleadings.
The Court indicated that the jury trial will be set in the latter part of November, 2018.
Jeff Barnes, Esq., www.ForeclosureDefenseNationwide.com