Filing # 49908643 E-Filed 12/12/2016 01:52:58 PM IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA Case No. 05-2010-CA-12998-XXXX-XX ONEWEST BANK FSB and FEDERAL NATIONAL MORTGAGE ASSOCIATION Plaintiff, vs CHARLES J. RUFFENACH, et al Defendants, / DEFENDANT’S MOTION FOR RECO! ERATION COMES NOW Defendant, CHARLES J. RUFFENACH (“Ruffenach”), and moves this Court to reconsider its Order on Plaintiff's Motion to Strike Demand for Jury Trial in Defendant’s Counterclaim under Fla, R. Civ. P. 1.540. A copy of the Order dated October 28, 2016, is attached hereto as Exhibit “A”, Defendant Ruffenach filed a Petition for Writ of Mandamus with the Fifth District Court of Appeals on November 28, 2016, with regard to this Court’s Order on Plaintiff’s Motion to Strike Demand for Jury Trial. A copy of the Petition is attached hereto as Exhibit “B”. Defendant requests that this Court reconsider its Order based upon the arguments contained in the Writ of Mandamus. WHEREFORE, Ruffenach requests that this Court reconsider its Order Striking Defendant’s Demand for Jury Trial in its Amended Counterclaim, and set this matter for jury trial as the Court’s calendar permits, CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that the foregoing was filed with the Florida Courts E-filing Portal Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXand copies provided via e-service to ROBERTSON, ANSCHUTZ & SCHNEID, P.L., ‘mail@rasflaw.com); Joseph Bachand (emailservice@BachandPA.com); and via US Mail to Shannon Burgin, 7255 Lee Highway, Apt. 213, Chattanooga, TN 37415; State of Florida Department of Revenue, 2450 Shumard Oak Boulevard, Tallahassee, FL 32399, and OneWest Bank FSB, c/o Legal Department, 888 E. Walnut Street, Pasadena, CA 91101, this 12" day of December, 2016. isi Nicholas Vidoni Nicholas A. Vidoni, Esquire WATSON, SOILEAU, DELEO & BURGETT, P.A. 3490 North U.S. Highway 1 Cocoa, Florida 32926 (321)631-1550 ph; (321)631-1567 fax vidoni@brevardlawgroup.com ‘Attorneys for Defendant Ruffenach Florida Bar No.: 95776 Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXFiling # 48209734 E-Filed 10/28/2016 08:56:27 AM. EXHIBIT “ IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT IN AND FOR BREVARD COUNTY, FLORIDA CASE # 05-2010-CA-012998-XXXX-XX ONEWEST BANK FSB, Plaintiff, vs. CHARLES J. RUFFENBACH, et. al Defendant(s) ORDER ON PLAINTIFE’S MOTION TO STRIKE DEMAND FOR JURY TRIAL Argument was heard by the Court on September 16, 2016, by the Parties relative to Plaintiff's Motion To Strike Demand For Jury Trial in Defendant's Counterclaim. The Court reserved and requested the Parties to submit memoranda and case law on the issue. The Court has received the memoranda and case law from each Party. When a contact is executed by the Parties in which one Party waives the right to a jury trial, it must be shown that the waiver was agreed to knowingly, voluntarily and intelligently. In making that determination, the Court can consider the placement of the waiver in the contract as to whether it is conspicuous; the level of sophistication and experience of each party; the ability to negotiate the terms; the bargaining power of the Parties; whether the Parties were represented by attorneys, and any other relevant factor in light of the circumstances. The Pl ntiff provided case law on the issue. The Defendant took the position that Federal National Mortgage Association was not the Plaintiff in the case since no Order substituting it as Plaintiff had ever been entered. Defendant's cases go to the point that a non-party cannot enforce a jury trial waiver. The Court agrees with the law cited on that issue but Defendant is mistaken when Defendant states in his motion that Federal National Mortgage Association has not been substituted on the record as Party Plaintiff ‘ONEWEST BANK FSB Filing 4@QR88B9 RUFFENBACH, ct a ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XX 05:2010-CA012998-XXKK-XK Page Hof? EXHIBIT "A"in this case, An Order was entered on January 11, 2016 substituting Federal National Mortgage Association as Plaintiff. It is thereupon ORDERED and ADJUDGED that the Plaintiff's Motion is GRANTED. the QF day of October, 2016. and ORDERED at Viera, Brevard County, Florida, ‘harles M. Holcomb Senior Circuit Judge CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this__ day of October, 2016 a true and correct conformed copy of the foregoing Order has been furnished via U.S. mail and/or eportal delivery to: Bachand & Bachand, P.A.: emailservice(@BachandP A.com JBachand@BachandPA.com Dallyon@BachandPA.com Shannon Burgin: 7255 Lee Hwy, Apt. 213, Chattanooga, TN 37415 Robertson, Anschutz & Schneid, P.L.: mmason@rasflaw.com mail@rasflaw.com Judicial Assistant ‘ONEWEST BANK FSO Fling 42998899 eusrENAACH a (ONEWEST BK VS C RUFFENACH 05-2010-CA-012998-XXXX-XX 05-2010-€4012998-9X8K IK Page 2012RECEIVED, 11/28/2016 4:40 PM, Joanne P. Simmons, Fifth District Court of Appeal EXHIBIT "B" IN THE FIFTH DISTRICT COURT OF APPEAL. OF THE STATE OF FLORIDA LT. No. 05-2010-CA-12998-XXXX-XX Case No. 5D-16-, CHARLES J. RUFFENACH, Petitioner, vs. ONEWEST BANK FSB and FEDERAL NATIONAL MORTGAGE ASSOCIATION Respondents. i PETITION FOR MANDAMUS Petitioner, CHARLES J. RUFFENACH, respectfully prays that a writ of mandamus issue to review an order from the Circuit Court of the Eighteenth Judicial Circuit of Florida denying Petitioner’s Demand for Jury Trial. Pursuant to Florida Rules of Appellate Procedure 9.030(b)(3), a district court of appeal has jurisdiction to issue writs of mandamus. The underlying order is one where the trial court struck Petitioner’s jury trial demand (dated October 28, 2016). The Second District Court of Appeal has observed that there “is some authority to suggest” that mandamus is the most appropriate remedy for a denial of Fring 49908643 ONEWEST BK VS C RUFFENACH 12998 HH : EXAIBIT SBa jury trial. State, Department of Natural Resources v. Estech, Inc., 515 So.2d 758, 759 n. 1 (Fla. 2d DCA 1987) citing Floyd v. Bentley, 496 So.2d 862 (Fla. 2d DCA 1986), rev. denied, 504 So.2d 767 (Fla. 1987) and Sarasota-Manatee Airport Authority v. Alderman, 238 So.2d 678 (Fla. 2d DCA 1970). The Third District Court of Appeal has also held that “Mandamus is an appropriate remedy to compel a judge to commit to a jury the issues triable as a matter of right.” Suntogs of Miami, Inc. v. Burroughs Corp., 433 So. 2d 581, 586 (Fla. 3d DCA 1983). While mandamus jurisdiction is appropriate to review a litigant’s right to a jury trial, certiorari jurisdiction is not. Jaye v. Royal Saxon, Inc., 720 So. 2d 214 (Fla. 1998). STATEMENT OF THE CASE Respondent's predecessor, Onewest Bank FSB (“Onewest”) brought a foreclosure complaint against Petitioner Charles J. Ruffenach (“Mr. Ruffenach”), the borrower named under a note and mortgage. (Appx. Ex. A). The mortgage contains a jury trial waiver for “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.” Id. Two and a half years passed and Onewest obtained an order substituting Ocwen Loan Servicing, LLC (“Ocwen”) for Onewest as the plaintiff. (Appx. Ex. F). Eo Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXNine months after that, Oewen amended its pleading with its second amended complaint. (Appx. Ex. G). Mr. Ruffenach answered the second amended complaint, and Ocwen moved to strike the answer. (Appx. Ex. H, I, & J). The trial court granted Ocwen’s motion to strike, and permitted Mr. Ruffenach to file an amended pleading. (Appx. Ex. L). When Mr. Ruffenach filed his amended pleading, he included counterclaims against under the Florida Consumer Collection Practices Act (“FCCPA”) and the Fair Debt Collection Practices Act (“FDCPA”). (Appx. Ex M). The counterclaims demanded a jury trial. Id. The counterclaims mistakenly named Onewest as the counter-defendant, even though Ocwen was the current plaintiff, and even though one of the alleged FCCPA or FDCPA violations arose from an Oewen document, attached to the counterclaim. Id. This pleading defect was correctable under the misnomer doctrine. See Kozich v. Shahady, 702 So. 2d 1289, 1291 (Fla. 4" DCA 1997). Mr. Ruffenach corrected this defect by moving for leave to file a corrected and amended counterclaim, which the trial court granted. (Appx. Ex. V, W, & Z). Ocwen was aware that it was the intended target under Mr. Ruffenach’s counterclaims targeted because it requested an extension of time to file a response to them. (Appx. Ex. N). Two days later, it filed a motion to substitute Federal National Mortgage Association (“FNMA”) as the plaintiff under the foreclosure ae Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXclaim. (Appx. Ex. ©). This motion attached an assignment of mortgage, which formed the basis for the substitution. Id. The assignment bore the date of August 13, 2015-twenty-six days before Mr. Ruffenach asserted his counterclaims. Id. The trial court granted the motion and ordered that “FEDERAL NATIONAL MORTGAGE ASSOCIATION is hereby substituted as party Plaintiff in the place of OCWEN LOAN SERVICING, LLC.” Id. (emphasis added). Neither Ocwen nor FNMA has ever sought a substitution of the counter-defendant under the FCCPA and FDCPA claims. Mr. Ruffenach has also never filed any FCCPA or FDCPA claims against FNMA. Despite being a non-party to the counterclaims, FNMA moved to strike Mr. Ruffenach’s jury trial demand under the mortgage’s contractual jury trial waiver provision. (Appx. Ex. S & U). Mr. Ruffenach argued that FNMA could not strike the jury trial demand because it was “not a party to CounterPlaintiff's Counterclaim.” (Appx. Ex. X 3). Mr. Ruffenach also submitted case law to the effect that a non-party to the note and mortgage could not enforce the jury trial waiver. This case law was applicable because Oewen had previously taken the position that it had assigned its rights under the note and mortgage to FNMA. (Appx. Ex. 0). That assignment would have also divested Ocwen of its previous right to enforce a jury trial waiver. Further, FNMA would not have been a party to es Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXthe note and mortgage at the time the FCCPA and FDCPA claims accrued. The trial court struck the jury trial demand. (Appx. Ex. Y). In doing so, it agreed with Mr. Ruffenach’s argument that a non-party could not enforce the jury trial waiver in the mortgage. Id. However, it misunderstood Mr. Ruffenach’s main argument-that FNMA could not pursue an order striking the counterclaims because it was not a party to them. Under the court’s mistaken interpretation of the arguments, it wrote: Defendant took the position that Federal National Association was not the Plaintiff in the case since no Order substituting it as Plaintiff has ever been entered... Defendant is mistaken when Defendant states in his motion that Federal National Mortgage Association has not been substituted on the record as Party Plaintiff in this case. An Order was entered on January 11, 2016 substituting Federal National Mortgage Association as Plaintiff. Id. The trial court failed to make any inquiry or analysis as to whether FNMA, a non- party to the counterclaim, could pursue an order striking the jury trial demand under Mr. Ruffenach’s counterclaims against Ocwen. Mr. Ruffenach files a petition for writ of mandamus upon this record. ARGUMENT. This Court should grant Respondent’s petition for writ of mandamus and quash the order striking his jury trial demand against Oewen. Quashal is S Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXappropriate for two reasons. First, FNMA, as a non-party to the counterclaim, lacked standing to pursue an order striking the jury trial demand against Ocwen. Second, Ocwen could not enforce the jury trial waiver because it divested itself of that protection when it assigned its interest in the note and mortgage to FNMA. This Court should quash the order on review because FNMA, as a non-party to Mr. Ruffenach’s counterclaims lacked standing to challenge his entitlement to a jury trial. Ocwen was the correct party counter-defendant to the counterclaims. If FNMA desired to stand into the shoes of the counter-defendant, it needed to obtain an order of substitution under Fla. R. Civ. P. 1.260(c). That rule states that a claim remains pending “against the original party, unless the court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party.” Here, FNMA substituted Ocwen’s position as plaintiff in the foreclosure action. FNMA did not obtain an order substituting it for Ocwen as the counter-defendant. Accordingly, FNMA was a non-party to the counterclaims and lacked standing to contest Mr. Ruffenach’s right to a jury trial Review of the lower court’s order is colored by concerns of constitutional and fundamental rights. “Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the eo Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXutmost care.” Teamsters v. Terry, 494 US 558, 565 (Fla. 1990) quoting Beacon Theatres, Inc. v. Westover, 359 US 500, 501 (1959), quoting Dimick v. Schiedt, 293 US 474, 486 (1935). “[A]s the right of jury trial is fundamental, courts indulge every reasonable presumption against waiver.” Aetna Ins. Co. v. Kennedy ex rel. Bogash, 301 US 389, 393 (1937). Florida’s constitution provides: “The right of trial by jury shall be secure to all and remain inviolate.” Art. I, § 22, Fla. Const. Absent a waiver, a party is entitled to a jury trial on an FDCPA claim, so long as the litigant timely demanded the right. Sibley v. Fulton DeKalb Collection Service, 677 F.2d 830 (11th Cir.1982). The lower court should not have stricken the jury trial demand even if Ocwen filed a motion to strike the jury trial demand. Ocwen admitted in the proceedings below that it had assigned its interest in the note and mortgage to FNMA. The Florida Supreme Court has discussed the legal import of an assignment of contractual rights such as this: “Importantly, once transferred, the assignor no longer has a right to enforce the interest because the assignee has obtained all ‘rights to the thing assigned.” Continental Cas. Co. v. Ryan Inc. Eastern, 974 So. 2d 368, 376 (Fla. 2008) citing Price v. RLI Ins. Co., 914 So. 2d 1010, 1013-14 (Fla. 5th DCA 2005) (quoting Lauren Kyle Holdings, Inc. v. Heath- Peterson Constr. Corp., 864 So. 2d 55, 58 (Fla. 5th DCA 2003)). Hence, the eT Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXassignment of mortgage divested Ocwen of its previously held contractual protection against a jury trial. The trial court therefore erred by striking the jury trial demand against Ocwen because Ocwen failed to be a party to the mortgage contract post-assignment. This result is consistent a long line of federal precedent which has reviewed similar if not identical contractual jury trial waivers. That precedent holds that non-parties to a contract cannot enforce a contractual jury trial waiver. Hamid v. Ocwen Loan Servicing, LLC, No. 13-62821-CTV (S.D. Fla. Feb. 26, 2014); Williams v. Wells Fargo Bank, N.A., No. 11-21233-CIV (S.D. Fla. Oct. 14, 2011); Omega v. Deutsche Bank Trust Co. Ams., 920 F, Supp. 2d 1298 (S.D. Fla. 2013); Thompson v. Caliber Home Loans, Inc., Case No. 15-21616 (SD Fla. Jan. 22, 2016); Paracor Fin., Inc. v. Gen. Elec. Capital Corp., 96 F.3d 1151, 1166 (9th Cir. 1996); Hulsey v. West, 966 F.2d 579, 581 (10th Cir. 1992). Mr. Ruffenach is not entitled to a jury trial in FNMA’s foreclosure claim against him. However he does have a right to submit his counterclaims against Ocwen to a jury because (a) FDCPA and FCCPA are properly chargeable to a jury, (b) Mr. Ruffenach dis not waive his right to a jury trial because he demanded a jury trial contemporaneously with the filing of his counterclaim, (c) Ocwen has never moved to sirike the jury demand, and (d) Oewen cannot move to strike the a Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXjury demand because it assigned its rights to the mortgage and jury trial waiver to FNMA. Accordingly, this Court should grant Mr. Ruffenach’s petition for mandamus, quash the trial court’s order striking his jury trial demand, and remand with instructions that the trial court shall submit the FDCPA and FCCPA counterclaims to a jury. Upon remand, the trial court may need to order two separate trials: one to adjudicate the FCCPA and FCCPA before a jury, and another to adjudicate the foreclosure claim before a judge. See Fla. R. Civ. P. 1.270(b). CERTIFICATE OF COMPLIANCE, I HEREBY CERTIFY that this petition complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. CERTIFICATE OF SERVICE I CERTIFY that on the 28th day of November, 2016, a copy of the foregoing was electronically filed with the Fifth District Court of Appeal via E-DCA and the undersigned served a copy electronically on ROBERTSON, ANSCHUTZ & SCHNEID, P.L., (mail@rasflaw.com); Joseph Bachand (emailservice@BachandPA.com); and via US Mail to Shannon Burgin, 7255 Lee 9. Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XXHighway, Apt. 213, Chattanooga, TN 37415; State of Florida Department of Revenue, 2450 Shumard Oak Boulevard, Tallahassee, FL 32399, and One West Bank FSB, c/o Legal Department, 888 E. Walnut Street, Pasadena, CA 91101. Js/ Nicholas Vidoni Nicholas A. Vidoni, Esquire WATSON, SOILEAU, DELEO & BURGETT, P.A. 3490 North U.S. Highway 1 Cocoa, Florida 32926 (321)631-1550 ph; (321)631-1567 fax vidoni@brevardlawgroup.com Attorneys for Petitioner Florida Bar No.: 95776 ats Filing 49908643 ONEWEST BK VS C RUFFENACH (05-2010-CA-012998-XXXX-XX