Hamid v. OCWEN Loan Servicing LLC (FLSD) | Ocwen by all accounts is only a servicer and never has been a lender notwithstanding its prior assertions in court, which many judges have rubber stamped and now wish they didn't.

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Hamid v. OCWEN Loan Servicing LLC (FLSD) | Ocwen by all accounts is only a servicer and never has been a lender notwithstanding its prior assertions in court, which many judges have rubber stamped and now wish they didn’t.

Hamid v. OCWEN Loan Servicing LLC (FLSD) | Ocwen by all accounts is only a servicer and never has been a lender notwithstanding its prior assertions in court, which many judges have rubber stamped and now wish they didn’t.

H/T LivingLies

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 13-62821-CIV-ZLOCH

WALEED B. HAMID,
Plaintiff,

vs.

OCWEN LOAN SERVICING, LLC, et
al.,
Defendants.
/

ORDER

THIS MATTER is before the Court upon Defendant Wells Fargo
Bank, National Association, as Trustee for American Home Mortgage
Investment Trust 2004-1 Mortgage-backed Notes, Series 2004-1’s
Motion To Strike Jury Trial Demand (DE 6) and Defendant Ocwen Loan
Servicing, LLC’s Motion To Strike Jury Trial Demand (DE 7). The
Court has carefully reviewed said Motions, the entire court file
and is otherwise fully advised in the premises.

On November 13, 2013, Plaintiff commenced the above-styled
cause in the Circuit Court of the Seventeenth Judicial Circuit in
and for Broward County, Florida, alleging violations of the Truth
in Lending Act, 15 U.S.C. § 601, et seq. (hereinafter “TILA”)
against Defendant Wells Fargo Bank, National Association, as
Trustee for American Home Mortgage Investment Trust 2004-1
Mortgage-backed Notes, Series 2004-1 (hereinafter, “Wells Fargo”)
and Ocwen Loan Servicing, LLC. DE 1, pp. 5-14. On December 30,
2013, Defendants removed the above-styled cause to the District
Court for the Southern District of Florida. See DE 1. According
to the Complaint, Defendant Wells Fargo owns a mortgage on
Plaintiff’s residence, and Defendant Ocwen Loan Servicing, LLC, is
the loan servicer for the mortgage at issue. See DE 1, pp. 6-7.

In Count I of his Complaint, Plaintiff seeks declaratory
relief from this Court that Defendant Ocwen Loan Servicing, LLC,
violated two sections of the TILA, namely, 15 U.S.C. §§ 1641(f)(2)
and 1639(1)(2). Count II of the Complaint claims that Defendant
Wells Fargo has substantial control over Ocwen Loan Servicing, LLC,
by virtue of a Servicing Agreement, and that Defendant Wells Fargo
is therefore vicariously liable for Defendant Ocwen’s alleged
violation of 15 U.S.C. § 1641(f)(2). Plaintiff demands a jury 1
trial on all issues so triable.

The Court notes that the alleged violations of the TILA
surround the Mortgage assigned to Defendant Wells Fargo. See DE 1,
p. 7, ¶¶ 15 & 16. Further, Section 25 of the Mortgage contains a
jury trial waiver, which provides as follows:
25. 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.
DE 6, p. 29 (“Exhibit A”).

By the instant Motions (DE Nos. 6 & 7), Defendants ask the
Court to strike Plaintiff’s demand for a jury trial, asserting that
Plaintiff waived his demand for a jury trial by the knowing and
voluntary execution of the Mortgage at issue. Plaintiff does not
contest the validity and enforceability of Section 25 of the
subject Mortgage (hereinafter, “the Waiver”) against Defendant
Wells Fargo. Therefore, the Court will grant Defendant Wells
Fargo’s Motion To Strike Jury Trial Demand (DE 6) as to the only
remaining count against said Defendant, Count II.

However, Plaintiff opposes the enforcement of the Waiver as to
Defendant Ocwen Loan Servicing, LLC. DE 12. Specifically,
Plaintiff argues that because Defendant Ocwen is a non-party the
Mortgage, it cannot enforce the Waiver therein. Plaintiff points
to two similar cases in support of his argument, Omega v. Deutsche
Bank Trust Co. Americas, 920 F. Supp. 2d 1298 (S.D. Fla. 2013), and
Williams v. Wells Fargo Bank N.A., Case No. 11-cv-21233-RNS, 2011
WL 4901346 (S.D. Fla. Oct. 14, 2011). In both of these actions,
the District Court for the Southern District of Florida enforced a
jury-trial waiver contained in a mortgage against the lender, but
refused to enforce said waiver against the loan servicer. In each
case, the District Court found that the loan servicers could not
enforce the jury trial waivers because they were non-parties to the
mortgages. See Omega, 920 F. Supp. 2d 1298 (holding loan servicer
could not invoke a jury trial waiver contained in a mortgage to
which it was a non-party); Williams, 2011 WL 4901346, at * 13
(citing Paracor Fin., Inc. V. Gen. Elec. Capital Corp., 96 F.3d
1151, 1166 (9th Cir. 1996)(noting that “a jury waiver is a
contractual right and generally may not be invoked by one who is
not a party to the contract”). The Court agrees and will,
therefore, deny Defendant Ocwen Loan Servicing, LLC’s, Motion To
Strike Jury Trial Demand (DE 7).

Plaintiff further requests that the Court try the above-styled
cause with an advisory jury, even if the Court finds the Waiver
enforceable by Defendant Wells Fargo, pursuant to Federal Rule of
Civil Procedure 39(c). “In an action not triable of right by a
jury, the court . . . may try any issue with an advisory jury.”
Fed. R. Civ. P. 39(c)(1). The Court finds that judicial economy
will be served by trying both of Plaintiffs’ claims together.
Therefore, the jury will provide a binding verdict as to Count I
against Defendant Ocwen Loan Servicing, LLC, and will advise the
Court as to Count II against Defendant Wells Fargo.

Accordingly, after due consideration, it is
ORDERED AND ADJUDGED as follows:

1. Defendant Wells Fargo Bank, National Association, as
Trustee for American Home Mortgage Investment Trust 2004-1
Mortgage-backed Notes, Series 2004-1’s Motion To Strike Jury Trial
Demand (DE 6) be and the same is hereby GRANTED; and

2. Defendant Ocwen Loan Servicing, LLC’s, Motion To Strike
Jury Trial Demand (DE 7) be and the same is hereby DENIED.
DONE AND ORDERED in Chambers at Fort Lauderdale, Broward
County, Florida, this 26th day February, 2014.

WILLIAM J. ZLOCH
United States District Judge
Copies furnished:
All Counsel of Record

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