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DEMBO, BROWN & BURNS up
ATTORNEYS AT LAW
Leon D. Dembo* 1300 ROUTE 73 Telephone:
James W. Burns* SUITE 205 856-354-8866
Michael E. Brown* MOUNT LAUREL, NEW JERSEY 08054
— Direct Fax:
Kyle F, Eingorn* 856-354-0971
— October 13, 2023
*Member NJ & PA Bar E-Mail
via E-COURTS KEingorn @dbblegal.com
Honorable John S. Kennedy, J.S.C.
Camden County Superior Court
101 S. Fifth Street
Camden, New Jersey 08104
Re: TD Bank N.A. v. S.C. Construction, et al.,
Docket No.: CAM-L-1259-23
Objection to Adjournment Request
Dear Judge Kennedy:
This firm represents the Plaintiff, TD Bank, N.A. (the “Bank”) in the above referenced
matter. Presently before the Court is the Bank’s Motion to Strike the Jury Demand in accordance
with the terms of the parties’ Loan Documents. The Motion is presently returnable before the Court
on October 20, 2023 (the “Motion”). The Bank objects to the Defendant’s request for an
adjournment of the Motion.
As the Court will recall, the Bank previously filed a Motion to Strike the Defendant’s Jury
Demand but withdrew the Motion in order to reduce litigation costs. Prior to the withdrawal of the
initial motion, the Defendant requested and obtained adjournments totaling six (6) weeks to
research the alleged “constitutional issues” and file opposition. In fact, the Defendant filed
opposition directly addressing the constitutional arguments, which have not changed since that
time. A copy of the Defendant’s Opposition is enclosed herewith.
Following the Bank’s withdrawal of the initial Motion to Strike Jury Demand, the
Defendant filed a Counterclaim, thereby changing the tenor of the litigation. Accordingly, the
Bank felt it necessary to enforce the jury waivers contained in twelve (12) loan documents
executed by the Defendant, i.e., obtain the benefit of its bargain. The only material change to the
Bank’s Motion is the inclusion of the eleven (11) other loan documents, which the Defendant
executed and contained a jury waiver; demonstrating the insincerity of the Defendant’s position.
However, none of the changes materially impact the alleged constitutionality of the waivers that
the Defendant unequivocally granted to the Bank.
As the Defendant has previously researched and briefed these issues and has had ample
time pursuant to the Court Rules to timely file opposition, an adjournment of the Motion is
unwarranted under the circumstances. Notably, the Defendant’s request fails to contain a reason
why timely opposition could not have been filed.
1
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Therefore, in light of the prior adjournments, and the prior briefing of the Motion, the Court
should not grant the Defendant another adjournment to research and brief issues, that have already
been researched, briefed and have not changed in the interim. We thank the Court for its time and
courtesies in this regard.
Respé submitte ul
ROWN BURNS LLP
JK
Fe Ang
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KFE/kae
ce: Jospeh Albanese, Esquire (via E-Mail & First-Class Mail)
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JOSEPH ALBANESE
Attorney at Law
915 Lacey Road
Forked River, New Jersey 08731
Phone: 609-971-6200 Fax: 609-971-6300
Jabanklaw 1 @aol.com
July 31, 2023
Hon. Daniel A. Bernardin, J.S.C.
Superior Court of New Jersey
101 South Sth Street
Camden, New Jersey 08103
RE: TD Bank v. April Campanelli et. al
Dkt. # CAM — L — 001259-23
Plaintiff's Motion to Strike Defendant’s Demand for Jury Trial
Dear Judge Bernardin:
I respectfully submit this letter reply brief in opposition to plaintiffs motion to
strike defendant’s demand for jury trial.
L General Background and Summary of Defendant’s Argument
in Opposition to Plaintiff’s Motion to Strike Jury Demand Trial
There has been a great deal of a case law development on the issue of right to
jury trial under the New Jersey constitution. However, the issue now before this
court is far more complicated than the typical jury trial waiver dispute.
Here, two separate levels of analysis are required. First, before the court can
even reach the jury trial issue under state law, the court must adjudicate April
Campanelli‘s defenses under the federal Equal Credit Opportunity Act (E.C.O.A.).
That act prevents a lender, like TD Bank, from requiring the signature of a spouse
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ona loan or guarantee when there is no underwriting purpose served in requiring her
signature. In other words, if a borrower independently qualifies for the loan on his
or her own, E.C.O.A. prohibits the lender from arbitrarily requiring the spouse to
sign.
Here, April Campanelli, even at this very early stage of discovery, can
demonstrate a prima facie case of violation of E.C.O.A. by TD Bank. If there is a
violation of E.C.0O.A., then the guarantee agreement signed by April Campanelli is
void in the first instance — and all of the terms of that guarantee, including the
purported waiver of jury trial, are also void.
In addition, there is a second level analysis required on this motion. Even if,
arguendo, there is no violation of E.C.O.A., the jury trial waiver is void as a matter
of state law under applicable appellate decisions. There are multiple grounds for
ruling that the waiver is unenforceable. Any one of these grounds compels a ruling
that the waiver is invalid.
Each of the above issues is discussed separately in greater detail below.
I. Plaintiff's Motion is Grossly Premature. It is Impossible to
Adjudicate the Motion Without First Adjudicating the ECOA Defens
In this case, Ms. Campanelli has asserted a defense the Equal Credit
Opportunity Act (E.C.O.A.), 15 U.S.C 1691 et. seq., which prevents discrimination
in the granting of credit. One type of prohibited discrimination (involved here)
occurs when a lender requires a spouse to guarantee a loan when there is no
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underwriting necessity to do so — in other words, when the borrower would have
been approved for the loan with or without the spouse’s signature.
If E.C.O.A. is violated, the contract (or guarantee) is void — all terms within
the guarantee, including the jury trial waiver, become void.
The policy behind EC.O.A. is to prevent precisely what occurred here. SC
Construction (the borrower) would have qualified for the loan with or without Ms.
Campanelli’s guarantee (discussed in greater detail, infra).! Requiring Ms.
Campanelli’s signature on the guarantee gave TD Bank zero economic benefit— it
merely gave plaintiff psychological leverage (against her and her husband, Steven
Campanelli, the owner and sole member of the borrower, SC Construction).
The Third Circuit Court of Appeals explains succinctly how E.C.O.A. applies
to a guarantee obligation:
The ECOA provides that it is unlawful "for any creditor to discriminate
against any [credit] applicant with respect to any aspect of a credit
transaction on the basis of... marital status." 15 U.S.C. § 1691(a)(1).
Except as provided in this paragraph, a creditor shall not
require the signature of an applicant's spouse or other person,
other than a joint applicant, on any credit instrument if the
applicant qualifies under the creditor's standards of
1
The court cannot and should not adjudicate the merits of the E.C.O.A. defense
here. We are merely pointing out that two separate layers of analysis are required.
First, the court must determine whether the guarantee is valid under E.C.O.A. If it is
(we believe it is not), then the court must determine the validity of the jury trial
waiver under familiar New Jersey appellate precedents (again, we believe it is not).
In most cases involving this issue, only the latter analysis is required.
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creditworthiness for the amount and terms of the credit
requested. 12 C.F.R. § 202.7(d).
Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28 at 30 (3d Cir. 1995), citing
Code of Fed. Regulations, 12 C.F.R. § 202.7(d). (N.B. — the body of regulatory law
implementing E.C.O.A. is Regulation B, 12 C.F.R. 1002 et. seq).
The E.C.O.A. is a powerful statutory to prevent and remedy overreaching by
lenders against a borrower’s spouse. Where a lender’s requires a spouse to co-sign
or guarantee a loan without economic justification (because the borrower is
independently credit-worthy), the spouse’s obligation is void. Moreover, even if the
statute of limitations had lapsed for an affirmative action (for April Campanelli, it
has not), she could nonetheless void the guarantee by asserting E.C.O.A. as a
“recoupment” defense. Silverman, 51 F.3d 28 at 32-34.
The overwhelming weight of authority is in accord. See, e.g., F.D.LC. v.
M edmark, Inc., 897 F. Supp. 511 at 513-515 (D. Kan. 1995) (summary judgment for
wife where lender violated E.C.O.A., husband was independently credit-worthy);
see also Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272 at 289-290 (Mo. Ct.
App. 2013).
Assuming the court voids Ms. Campanelli’s guarantee agreement, the
purported jury trial waiver (embodied in the guarantee) is automatically void. ?
2
We make two observations. First if the court agrees that the guarantee is void
under E.C.0.A., TD’s claims against the other defendants are not automatically
void. Those claims rise and fall on their own merits. Silverman, 51 F.3d at 33.
4
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TH. Even at this Early Stage, Defendant Can Demonstrate a Prima
Facie Violation of the Equal Credit Opportunity Act and
Show That the Purported Contract is Void as to Her
Even at this carly stage of the case, with discovery just beginning, April
Campanelli can demonstrate that there was simply no underwriting justification for
plaintiff to require a loan guarantee from her.
During the application process, TD bank did not ask April Campanelli to
disclose her income, her assets, or anything else for that matter. The borrower was
SC Construction, and April’s husband, Steve Campanelli, was a 100% owner of that
entity. Ms. Campanelli was not an owner, nor an officer of the borrower. To the best
of her recollection, she did not even sign the loan application. The application
process was handled completely by her husband as the sole member of SC
Construction. (Certification of April Campanelli).
Nor was April Campanelli asked to sign a guarantee because she and her
husband owned joint assets that might be needed as collateral (such as real estate).
She was not asked to pledge, and did not in fact pledge, any property - neither jointly
owned asserts nor her own individual assets, neither real nor personal. (Cert. of April
Campanelli)
Also, to state the obvious, assuming the court does void the guarantee under
E.C.0.A., the jury trial waiver is automatically voided. It is irrelevant whether the
court adjudicates the E.C.O.A. defense by way of bench trial, jury trial, or summary
judgment. The result is the same in any event. The guarantee (including the jury trial
waiver) is void.
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The facts established by Ms. Campanelli’s certification are precisely the same
factors considered by our courts in determining whether E.C.O.A. has been violated.
See Frontenac Bank, supra, 404 §.W.3d at 286-289.
In short, there was no legitimate reason to make Ms. Campanelli sign a
guarantee. A prima facie basis for voiding the jury trial waiver has already been
established.
IV. Under Traditional Case Law Precedents the Purported Jury Waiver
is Unenforceable Because There is Compelling Evidence that April
Campanelli Did Not Knowingly Waive Her Right to a Jury Trial
As noted above, the first level of analysis must be whether the guarantee
agreement (including the jury trial waiver) is void under E.C.O.A. Importantly,
however, and independent of Ms. Campanelli’s right to void the waiver under
E.C.0.A., the waiver is also unenforceable under traditional case law precedents —
both state and federal — because it was not made knowingly or intentionally.
Under applicable case law, a jury trial waiver is enforceable only if Ms.
Campanelli did so knowingly and intentionally. Our courts have said repeatedly that
the right to a jury trial under the New Jersey Constitution is a fundamental right of
all citizens. Our courts should not lightly set aside a demand for jury trial. To the
contrary, there is a presumption against waiver. First Union Nat. Bank v. U.S., 164
F. Supp. 2d 660 at 662-663 (E.D. Pa. 2001):
Given that there is a presumption against waiver, Courts do not uphold
jury trial waivers lightly and the burden of proving that a waiver was
done both knowingly and intelligently falls upon the party seeking
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enforcement of a waiver of a jury trial clause. ...... A waiver is
knowing, voluntary and intelligent when the facts show that (1) there
was no gross disparity in bargaining power between the parties; (2)
the parties are sophisticated business entities; (3) the parties had an
opportunity to negotiate the contract terms; and (4) the waiver
provision was conspicuous. (emphasis provided).
First Union Nat. Bank v. U.S., 164 F. Supp. 2d at 660, 663 (E.D. Pa. 2001).
In determining whether a party knowingly signed a jury trial waiver - as
opposed to blindly signing small-print boilerplate in a contract under extreme stress
— our courts look at the totality of circumstances. No one fact controls the outcome.
Our courts (state and federal) scrutinize the overall context carefully, to determine
whether the alleged guarantor was represented by counsel, whether he/she had equal
bargaining power with the party seeking the waiver, whether there was an
opportunity for actual negotiations on the issue, whether he/she actually read and
understood the alleged waiver, and the overall context in which the document was
signed. First Union Nat. Bank, supra.
Critically, the mere fact that someone signs a guarantee or waiver is not
conclusive. See Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272 at 286 (Mo.
Ct. App. 2013) (borrowers had not read the purported guarantee, and the statement
therein relied on by lender was incorrect).>
3
Frontenac Bank is also relevant because the guarantee agreement analyzed
therein contained the same statement found in Ms. Campanelli’s guarantee: “this
Guaranty is executed at Borrower's request and not at the request of Lender. ”, 404
S.W.3d at 287-288 (Mo. Ct. App. 2013). The Frontenac court was not persuaded by
this provision in the guarantee. Similarly, Ms. Campanelli points out in her
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In this case, April Campanelli signed the guarantee under the most stressful
of circumstances. It occurred at the height of the COVID pandemic, when our state
was essentially shut down. TD‘s representative went to the home of April
Campanelli. She had no advance warning. Her father had just died a few months
earlier because of COVID, and she had a serious heart condition of her own.
Terrified of contracting the virus herself, she would not even let TD’s employee
come into her home. (Cert. of Campanelli).
At one point, Ms. Campanelli was asked to come outdoors to her patio. The
gentleman from TD instructed her to sign the document on the spot. She literally
signed it those documents standing up at an outdoor countertop next to a stove on
her patio - there was no opportunity even to sit down and read the document.
Everyone had their masks on. There was no negotiation, no discussion about the
contents of the document, and certainly no disclosure of a “jury trial waiver”. (Cert.
of Campanelli).
The whole closing on April Campanelli‘s patio took literally a minute or two.
Ms. Campanelli was not represented by counsel, and not advised by TDs
representative to obtain counsel. She obviously did not have equal bargaining power
with TD Bank in the extremely stressful context of that closing. (Cert. of
Campanelli). There clearly was no meaningful negotiations as to jury waiver.
Under these circumstances, no one can seriously argue that April Campanelli
knowingly and intentionally waved her constitutional right to a jury trial.
certification that the same claim made by TD Bank here (that she requested the
guarantee from then) is pure fiction. She never made any such request to TD Bank.
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Absent a knowing and intentional waiver, the waiver is unenforceable.
V. The Purported Waiver is Defective on its Face
Because it is Neither Clear or Conspicuous
As TD bank correctly points out, in order for a jury trial waiver to be valid, it
must be clear and unequivocal. (TD Bank’s brief memorandum of law, p. 5).
However, TD Bank’s purported waiver is anything but clear and conspicuous. (TD’s
jury trial waiver is found in plaintiffs memorandum of law, Exhibit B). Several
observations are in order:
First, as noted above, jury trial waiver is not valid unless it is made knowingly
and intentionally. The courts look at the totality of circumstances. Thus, even if,
arguendo, the jury trial waiver in this case were clear and unequivocal as TD claims
(it is no?), it still would not be enforceable based_on the totality of other factors
demonstrating that Ms. Campanelli never knowingly waived her constitutional right
(i.e., no legal representation, no actual negotiating or bargaining, no equality of
bargaining power, rushed and stressful closing without advance notice, etc.). 4
4
The Federal District Court for the Eastern District of Pennsylvania dealt with
this very issue in First Union Nat. Bank, supra. There, the court held that the jury
trial waiver was “conspicuous”. Nonetheless, although the written waiver itself was
valid, the court held that based on other factors, the waiver was unenforceable (ie.,
gross disparity in bargaining power, no opportunity for meaningful negotiation, etc.).
First Union Nat. . Bank, 164 F. Supp. 2d at 664-665.
Moreover, examining the jury trial waiver in First Union Nat. Bank, and
comparing it to TD Bank’s waiver in this case, is illuminating. In First Union, the
waiver approved by the court is entirely in capital letters, it explicitly refers to
“litigation“ twice, and it clearly defines. the scope of the waiver as referring to
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However, the jury trial waiver here is anything but clear and unequivocal. The
ourt should examine the actual guarantee - not the reproduction of the waiver shown
in TD Bank’s brief. In its brief, TD takes the jury waiver out of context, reproduces
it with two other short passages also taken out of context, uses much larger type, and
separates the three passages with far more blank space in between than is found in
the actual guarantee. (See TD Bank’s memorandum of law, pp. 2-4). In short, the
reproduction of the waiver in TD’s brief is misleading.
In TD’s guarantee agreement, the type used is tiny and the entire document is
singled-spaced, with minimal space in between sections. It is written is convoluted
“legalese”, with many terms only an attorney would understand. It is barely readable.
(TD’s brief, Exhibit B). A trained lawyer could, given sufficient time, study the
guarantee and eventually understand all of its various terms and waivers. A non-
lawyer has little chance of understanding its term — and if the guarantor has to sign
the document standing up, under stressful condition, in a rush, without the benefit of
counsel (as occurred here), she would have zero chance of understanding it.
A case precisely on point is Fairfield Leasing v. Techni-Graphics, 256 NJ.
Super. 538 (Law Div. 1992). There, the court analyzed a jury trial waiver embedded
in a contract very similar to the guarantee agreement here - single-spaced with tiny
disputes arising out of the underlying loan. The First Union waiver is
comprehensible to a non-lawyer. By contrast, TD Bank’s waiver here is formatted
in tiny print, single spaced, and essentially unreadable. TD’s one-sentence waiver is
so vague in its wording that even an intelligent reader would not really understand
what it was referring to — it does not even mention “lawsuit” or “litigation”.
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print. Noting that the guarantee was a standardized form (a “contract of adhesion”)
and that there was no meaningful bargaining over its terms, the court succinctly
described the guarantee as follows:
.. It is a classic example of a document which has been prepared
with the intent that it neither be negotiated nor read.” (emphasis
supplied)
Fairfield Leasing, 256 N.J. Super. at 540 (Law Div. 1992).
After viewing all of the relevant factors (not only the guarantee agreement
itself, but the lack of meaningful negotiation, lack of legal representation, etc.), the
Fairfield Leasing court concluded:
In view of this strong presumption the defendants have a very
heavy burden of proving that the plaintiffs knowingly, voluntarily
and intentionally agreed upon the jury waiver provision in the
1978 Agreement. A constitutional guarantee so fundamental as the
right to jury trial cannot be waived unknowingly by mere insertion
of a waiver provision on the twentieth page of a twenty-two page
standardized form contract. (emphasis supplied).
Fairfield Leasing, 256 N.J. Super. at 542.
Moreover, the very wording of TD’s jury waiver is misleading. There is no
actual heading, just two words at the beginning of the sentence (“Waive Jury”).
Remarkably, nowhere does the word “lawsuit” or “litigation” appear in the one-
sentence waiver. Instead, the waiver refers to “any action, proceeding or counter-
claim“. To a person not schooled in the law, this choice of words does not even make
it clear that the waiver has something to do with a lawsuit.
il
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Equally misleading, by its express terms the waiver is unreasonably broad and
ambiguous. Read literally, it would include a waiver of jury trial in the future as to
events that have not even occurred yet. Moreover, the wording lacks specificity - it
fails to define the scope of the waiver. It is so generic that a non-lawyer would not
know whether it refers to this particular loan, other transactions with TD Bank in the
future, statutory claims (like E.C.O.A.), or something else altogether.
TD claims that the waiver is “conspicuous” merely because it is in bold type.
That is simply not plausible. The type is so tiny and the spacing is so dense, that
even though the waiver is technically in “bold” type, it does not stand out. TD’s
guarantee agreement is same type of standardized, small-print “contract of adhesion”
that the court criticized in Fairfield Leasing, supra.
Moreover, it is noteworthy that there are several other sections in the
guarantee agreement that are also in “bold” type, but like the jury waiver those
sections are not “conspicuous” because of the exceedingly small print and single-
spaced formatting. (See, e.g., for example the bold-type lines in the “Duration of
Guarantee”, “Guarantor’s Authorization to Lender”, and “Miscellaneous Provisions
— Governing Law” sections. Certain lines in those sections are also in bold type, but
they do not stand out because of the tiny type and crowded spacing).
In short, the guarantee document is so difficult to read because of the small
type, tight spacing, and overall formatting, it is hard to believe that it was designed
5
Please see discussion infra regarding the legal consequence of TD’s failure to
reference “statutory claims” explicitly in the jury trial waiver.
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with anything other than an intent to obfuscate and to hide the more objectionable
provisions — including waiver of the guarantor’s constitutional right to a jury trial.
Vi Plaintiff's Argument is Even Weaker in this Case Because Ms.
Campanelli’s Defense Involves a Statutory Claim, and Statutory
Claims are Not Subject to Waiver Unless Explicitly Listed
April Campanelli’s defenses are based on a statutory claim, the Equal Credit
Opportunity Act, 15 U.S.C. 1691 et. seq. Our Appellate Division has ruled that when
a party is asked to waive a statutory claim, it must be made clear in the jury trial
waiver.
A leading case is Noren v. Heartland Payment Sys., Inc., 448 N.J. Super. 486
(App. Div. 2017), which deals with a jury trial waiver involving a dispute under New
Jersey’s Conscientious Employee Protection Act (CEPA), a statutory claim The
employment contract contained a jury waiver. The Appellate Division ruled that it
was reversible error to deny the employee’s right to a jury trial.
The wording of the jury trial waiver in Noren was similar, if not identical to,
the waiver in this case.’ There was no mention of the statutory claim under CEPA
(either specifically or by category). The Appellate Division ruled that a jury trial
waiver is not enforceable unless its wording makes it clear that statutory rights are
6
The employee waived his right to trial by jury “in any suit, action or proceeding
under, in connection with, or to enforce this Agreement”. Noren, 448 N.J. Super. at
492.
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being relinquished. No magic language is required. However, the wording must put
the party on notice that statutory rights are is being surrendered:
the provision must be grounded in “plain language that
would be clear and understandable to the average" person that
Statutory rights are being waived. Id. at 446. In short, to effect a
waiver, the language must clearly explain (1) what right is being
surrendered and (2) the nature of the claims covered by the waiver.
(emphasis supplied).
Noren, 448 N.J. Super. at 495.
Also highly relevant is the Supreme Court’s decision in Garfinkel_v.
Morristown Obstetrics, 168 N.J. 124 (2001). There, the Supreme Court analyzed the
scope of an arbitration agreement embodied in an employment contract. (Arbitration
agreements are de facto waivers of the right to jury trial). The issue was whether the
particular wording of the arbitration clause included a waiver of the right to litigate
claims arising under New Jersey’s Law Against Discrimination (“LAD”), a statutory
claim.
The Supreme Court noted that the LAD is a statutory claim, and observed that
the specific wording in the mandatory arbitration agreement did not mention, either
expressly or by general reference, statutory claims as being within the scope of the
agreement. The court held that statutory LAD claims were outside the scope of the
arbitration agreement:
To pass muster, however, a waiver-of-rights provision should at
least provide that the employee agrees to arbitrate all statutory
claims arising out_of the employment relationship or _its
termination. It should also reflect the employee's general
understanding of the type of claims included in the waiver, e.g.,
workplace discrimination claims. (emphasis supplied).
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Garfinkel v. Morristown Obstetrics, 168 N.J. at 135.
Thus, the employee’s claims arising under the LAD in Garfinkel were outside
the scope of the arbitration agreement, and the employee was free to pursue his
remedies in court. The wording of the agreement did not fairly put the employee on
notice that statutory claims were included.
Because Ms. Campanelli‘s E.C.O.A. claim is based on statute, TD Bank’s
purported jury trial waiver is inherently defective. There is no mention whatsoever
of her statutory rights under E.C.O.A. in the waiver. The wording is so broad, and
so ambiguous, that the average person would have no idea she is relinquishing her
rights under a federal statute, E.C.O.A. (or any other statute for that matter).
In short, even if TD’s jury trial waiver were clear and conspicuous (it is not). >
the waiver would nonetheless be unenforceable because it fails to include any
mention of “statutory” claims generally, or E.C.O.A. specifically.
15
CAM-L-001259-23 10/13/2023 3:26:13 PM Pg18of18 Trans ID: LCV20233115817
CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 16 of 16 Trans ID: LCV20232222896
CONCLUSION
The court should deny plaintiff's motion to strike defendant’s jury trial
demand, with prejudice.
Even at this early stage, the evidence shows there are multiple legal grounds
to deny the motion. The purported jury trial waiver is inherently defective as a matter
of constitutional law, and there is certainly a strong possibility that April Campanelli
will prevail on her ECOA claim — thereby making the entire guarantee agreement,
including the jury trial waiver, void.
If, arguendo, the court disagrees, the court should deny the motion without
prejudice. The parties would be free to revisit the issue after all discovery is done (I
note that discovery has just begun in this case).
As yet another alternative, the court could order trial by an advisory jury,
whose verdict would guide the court’s ultimate disposition of the case. It would be
completely fair - the right to a jury trial is a fundamental, constitutional right of all
citizens.
Plaintiff has no cognizable right — by statute or constitution — to avoid a jury
trial. All doubts should be resolved in favor of permitting a jury trial.
I take this opportunity to thank Your Honor for your consideration.
Respectfully submitted,
/S/Joseph Albanese
JOSEPH ALBANESE, Esq.
Attomey for Defendant,
April Campanelli
16
Preview
CAM-L-001259-23 10/13/2023 3:26:13 PM Pg1lof18 Trans ID: LCV20233115817 DEMBO, BROWN & BURNS up ATTORNEYS AT LAW Leon D. Dembo* 1300 ROUTE 73 Telephone: James W. Burns* SUITE 205 856-354-8866 Michael E. Brown* MOUNT LAUREL, NEW JERSEY 08054 — Direct Fax: Kyle F, Eingorn* 856-354-0971 — October 13, 2023 *Member NJ & PA Bar E-Mail via E-COURTS KEingorn @dbblegal.com Honorable John S. Kennedy, J.S.C. Camden County Superior Court 101 S. Fifth Street Camden, New Jersey 08104 Re: TD Bank N.A. v. S.C. Construction, et al., Docket No.: CAM-L-1259-23 Objection to Adjournment Request Dear Judge Kennedy: This firm represents the Plaintiff, TD Bank, N.A. (the “Bank”) in the above referenced matter. Presently before the Court is the Bank’s Motion to Strike the Jury Demand in accordance with the terms of the parties’ Loan Documents. The Motion is presently returnable before the Court on October 20, 2023 (the “Motion”). The Bank objects to the Defendant’s request for an adjournment of the Motion. As the Court will recall, the Bank previously filed a Motion to Strike the Defendant’s Jury Demand but withdrew the Motion in order to reduce litigation costs. Prior to the withdrawal of the initial motion, the Defendant requested and obtained adjournments totaling six (6) weeks to research the alleged “constitutional issues” and file opposition. In fact, the Defendant filed opposition directly addressing the constitutional arguments, which have not changed since that time. A copy of the Defendant’s Opposition is enclosed herewith. Following the Bank’s withdrawal of the initial Motion to Strike Jury Demand, the Defendant filed a Counterclaim, thereby changing the tenor of the litigation. Accordingly, the Bank felt it necessary to enforce the jury waivers contained in twelve (12) loan documents executed by the Defendant, i.e., obtain the benefit of its bargain. The only material change to the Bank’s Motion is the inclusion of the eleven (11) other loan documents, which the Defendant executed and contained a jury waiver; demonstrating the insincerity of the Defendant’s position. However, none of the changes materially impact the alleged constitutionality of the waivers that the Defendant unequivocally granted to the Bank. As the Defendant has previously researched and briefed these issues and has had ample time pursuant to the Court Rules to timely file opposition, an adjournment of the Motion is unwarranted under the circumstances. Notably, the Defendant’s request fails to contain a reason why timely opposition could not have been filed. 1 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg2of18 Trans ID: LCV20233115817 Therefore, in light of the prior adjournments, and the prior briefing of the Motion, the Court should not grant the Defendant another adjournment to research and brief issues, that have already been researched, briefed and have not changed in the interim. We thank the Court for its time and courtesies in this regard. Respé submitte ul ROWN BURNS LLP JK Fe Ang z KFE/kae ce: Jospeh Albanese, Esquire (via E-Mail & First-Class Mail) CAM-L-001259-23 10/13/2023 3:26:13 PM Pg3of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 1 of 16 Trans ID: LCV20232222896 JOSEPH ALBANESE Attorney at Law 915 Lacey Road Forked River, New Jersey 08731 Phone: 609-971-6200 Fax: 609-971-6300 Jabanklaw 1 @aol.com July 31, 2023 Hon. Daniel A. Bernardin, J.S.C. Superior Court of New Jersey 101 South Sth Street Camden, New Jersey 08103 RE: TD Bank v. April Campanelli et. al Dkt. # CAM — L — 001259-23 Plaintiff's Motion to Strike Defendant’s Demand for Jury Trial Dear Judge Bernardin: I respectfully submit this letter reply brief in opposition to plaintiffs motion to strike defendant’s demand for jury trial. L General Background and Summary of Defendant’s Argument in Opposition to Plaintiff’s Motion to Strike Jury Demand Trial There has been a great deal of a case law development on the issue of right to jury trial under the New Jersey constitution. However, the issue now before this court is far more complicated than the typical jury trial waiver dispute. Here, two separate levels of analysis are required. First, before the court can even reach the jury trial issue under state law, the court must adjudicate April Campanelli‘s defenses under the federal Equal Credit Opportunity Act (E.C.O.A.). That act prevents a lender, like TD Bank, from requiring the signature of a spouse CAM-L-001259-23 10/13/2023 3:26:13 PM Pg4of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 2of16 Trans ID: LCV20232222896 ona loan or guarantee when there is no underwriting purpose served in requiring her signature. In other words, if a borrower independently qualifies for the loan on his or her own, E.C.O.A. prohibits the lender from arbitrarily requiring the spouse to sign. Here, April Campanelli, even at this very early stage of discovery, can demonstrate a prima facie case of violation of E.C.O.A. by TD Bank. If there is a violation of E.C.0O.A., then the guarantee agreement signed by April Campanelli is void in the first instance — and all of the terms of that guarantee, including the purported waiver of jury trial, are also void. In addition, there is a second level analysis required on this motion. Even if, arguendo, there is no violation of E.C.O.A., the jury trial waiver is void as a matter of state law under applicable appellate decisions. There are multiple grounds for ruling that the waiver is unenforceable. Any one of these grounds compels a ruling that the waiver is invalid. Each of the above issues is discussed separately in greater detail below. I. Plaintiff's Motion is Grossly Premature. It is Impossible to Adjudicate the Motion Without First Adjudicating the ECOA Defens In this case, Ms. Campanelli has asserted a defense the Equal Credit Opportunity Act (E.C.O.A.), 15 U.S.C 1691 et. seq., which prevents discrimination in the granting of credit. One type of prohibited discrimination (involved here) occurs when a lender requires a spouse to guarantee a loan when there is no CAM-L-001259-23 10/13/2023 3:26:13 PM Pg5of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 3 of 16 Trans 1D: LCV20232222896 underwriting necessity to do so — in other words, when the borrower would have been approved for the loan with or without the spouse’s signature. If E.C.O.A. is violated, the contract (or guarantee) is void — all terms within the guarantee, including the jury trial waiver, become void. The policy behind EC.O.A. is to prevent precisely what occurred here. SC Construction (the borrower) would have qualified for the loan with or without Ms. Campanelli’s guarantee (discussed in greater detail, infra).! Requiring Ms. Campanelli’s signature on the guarantee gave TD Bank zero economic benefit— it merely gave plaintiff psychological leverage (against her and her husband, Steven Campanelli, the owner and sole member of the borrower, SC Construction). The Third Circuit Court of Appeals explains succinctly how E.C.O.A. applies to a guarantee obligation: The ECOA provides that it is unlawful "for any creditor to discriminate against any [credit] applicant with respect to any aspect of a credit transaction on the basis of... marital status." 15 U.S.C. § 1691(a)(1). Except as provided in this paragraph, a creditor shall not require the signature of an applicant's spouse or other person, other than a joint applicant, on any credit instrument if the applicant qualifies under the creditor's standards of 1 The court cannot and should not adjudicate the merits of the E.C.O.A. defense here. We are merely pointing out that two separate layers of analysis are required. First, the court must determine whether the guarantee is valid under E.C.O.A. If it is (we believe it is not), then the court must determine the validity of the jury trial waiver under familiar New Jersey appellate precedents (again, we believe it is not). In most cases involving this issue, only the latter analysis is required. CAM-L-001259-23 10/13/2023 3:26:13 PM Pg6of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 4 of16 Trans ID: LCV20232222896 creditworthiness for the amount and terms of the credit requested. 12 C.F.R. § 202.7(d). Silverman v. Eastrich Multiple Investor Fund, 51 F.3d 28 at 30 (3d Cir. 1995), citing Code of Fed. Regulations, 12 C.F.R. § 202.7(d). (N.B. — the body of regulatory law implementing E.C.O.A. is Regulation B, 12 C.F.R. 1002 et. seq). The E.C.O.A. is a powerful statutory to prevent and remedy overreaching by lenders against a borrower’s spouse. Where a lender’s requires a spouse to co-sign or guarantee a loan without economic justification (because the borrower is independently credit-worthy), the spouse’s obligation is void. Moreover, even if the statute of limitations had lapsed for an affirmative action (for April Campanelli, it has not), she could nonetheless void the guarantee by asserting E.C.O.A. as a “recoupment” defense. Silverman, 51 F.3d 28 at 32-34. The overwhelming weight of authority is in accord. See, e.g., F.D.LC. v. M edmark, Inc., 897 F. Supp. 511 at 513-515 (D. Kan. 1995) (summary judgment for wife where lender violated E.C.O.A., husband was independently credit-worthy); see also Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272 at 289-290 (Mo. Ct. App. 2013). Assuming the court voids Ms. Campanelli’s guarantee agreement, the purported jury trial waiver (embodied in the guarantee) is automatically void. ? 2 We make two observations. First if the court agrees that the guarantee is void under E.C.0.A., TD’s claims against the other defendants are not automatically void. Those claims rise and fall on their own merits. Silverman, 51 F.3d at 33. 4 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg7of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 5of 16 Trans ID: LCV20232222896 TH. Even at this Early Stage, Defendant Can Demonstrate a Prima Facie Violation of the Equal Credit Opportunity Act and Show That the Purported Contract is Void as to Her Even at this carly stage of the case, with discovery just beginning, April Campanelli can demonstrate that there was simply no underwriting justification for plaintiff to require a loan guarantee from her. During the application process, TD bank did not ask April Campanelli to disclose her income, her assets, or anything else for that matter. The borrower was SC Construction, and April’s husband, Steve Campanelli, was a 100% owner of that entity. Ms. Campanelli was not an owner, nor an officer of the borrower. To the best of her recollection, she did not even sign the loan application. The application process was handled completely by her husband as the sole member of SC Construction. (Certification of April Campanelli). Nor was April Campanelli asked to sign a guarantee because she and her husband owned joint assets that might be needed as collateral (such as real estate). She was not asked to pledge, and did not in fact pledge, any property - neither jointly owned asserts nor her own individual assets, neither real nor personal. (Cert. of April Campanelli) Also, to state the obvious, assuming the court does void the guarantee under E.C.0.A., the jury trial waiver is automatically voided. It is irrelevant whether the court adjudicates the E.C.O.A. defense by way of bench trial, jury trial, or summary judgment. The result is the same in any event. The guarantee (including the jury trial waiver) is void. 5 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg8of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 6 of 16 Trans ID: LCV20232222896 The facts established by Ms. Campanelli’s certification are precisely the same factors considered by our courts in determining whether E.C.O.A. has been violated. See Frontenac Bank, supra, 404 §.W.3d at 286-289. In short, there was no legitimate reason to make Ms. Campanelli sign a guarantee. A prima facie basis for voiding the jury trial waiver has already been established. IV. Under Traditional Case Law Precedents the Purported Jury Waiver is Unenforceable Because There is Compelling Evidence that April Campanelli Did Not Knowingly Waive Her Right to a Jury Trial As noted above, the first level of analysis must be whether the guarantee agreement (including the jury trial waiver) is void under E.C.O.A. Importantly, however, and independent of Ms. Campanelli’s right to void the waiver under E.C.0.A., the waiver is also unenforceable under traditional case law precedents — both state and federal — because it was not made knowingly or intentionally. Under applicable case law, a jury trial waiver is enforceable only if Ms. Campanelli did so knowingly and intentionally. Our courts have said repeatedly that the right to a jury trial under the New Jersey Constitution is a fundamental right of all citizens. Our courts should not lightly set aside a demand for jury trial. To the contrary, there is a presumption against waiver. First Union Nat. Bank v. U.S., 164 F. Supp. 2d 660 at 662-663 (E.D. Pa. 2001): Given that there is a presumption against waiver, Courts do not uphold jury trial waivers lightly and the burden of proving that a waiver was done both knowingly and intelligently falls upon the party seeking 6 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg9of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg7of16 Trans ID: LCV20232222896 enforcement of a waiver of a jury trial clause. ...... A waiver is knowing, voluntary and intelligent when the facts show that (1) there was no gross disparity in bargaining power between the parties; (2) the parties are sophisticated business entities; (3) the parties had an opportunity to negotiate the contract terms; and (4) the waiver provision was conspicuous. (emphasis provided). First Union Nat. Bank v. U.S., 164 F. Supp. 2d at 660, 663 (E.D. Pa. 2001). In determining whether a party knowingly signed a jury trial waiver - as opposed to blindly signing small-print boilerplate in a contract under extreme stress — our courts look at the totality of circumstances. No one fact controls the outcome. Our courts (state and federal) scrutinize the overall context carefully, to determine whether the alleged guarantor was represented by counsel, whether he/she had equal bargaining power with the party seeking the waiver, whether there was an opportunity for actual negotiations on the issue, whether he/she actually read and understood the alleged waiver, and the overall context in which the document was signed. First Union Nat. Bank, supra. Critically, the mere fact that someone signs a guarantee or waiver is not conclusive. See Frontenac Bank v. T.R. Hughes, Inc., 404 S.W.3d 272 at 286 (Mo. Ct. App. 2013) (borrowers had not read the purported guarantee, and the statement therein relied on by lender was incorrect).> 3 Frontenac Bank is also relevant because the guarantee agreement analyzed therein contained the same statement found in Ms. Campanelli’s guarantee: “this Guaranty is executed at Borrower's request and not at the request of Lender. ”, 404 S.W.3d at 287-288 (Mo. Ct. App. 2013). The Frontenac court was not persuaded by this provision in the guarantee. Similarly, Ms. Campanelli points out in her CAM-L-001259-23 10/13/2023 3:26:13 PM Pg10of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 8 of 16 Trans ID: LCV20232222896 In this case, April Campanelli signed the guarantee under the most stressful of circumstances. It occurred at the height of the COVID pandemic, when our state was essentially shut down. TD‘s representative went to the home of April Campanelli. She had no advance warning. Her father had just died a few months earlier because of COVID, and she had a serious heart condition of her own. Terrified of contracting the virus herself, she would not even let TD’s employee come into her home. (Cert. of Campanelli). At one point, Ms. Campanelli was asked to come outdoors to her patio. The gentleman from TD instructed her to sign the document on the spot. She literally signed it those documents standing up at an outdoor countertop next to a stove on her patio - there was no opportunity even to sit down and read the document. Everyone had their masks on. There was no negotiation, no discussion about the contents of the document, and certainly no disclosure of a “jury trial waiver”. (Cert. of Campanelli). The whole closing on April Campanelli‘s patio took literally a minute or two. Ms. Campanelli was not represented by counsel, and not advised by TDs representative to obtain counsel. She obviously did not have equal bargaining power with TD Bank in the extremely stressful context of that closing. (Cert. of Campanelli). There clearly was no meaningful negotiations as to jury waiver. Under these circumstances, no one can seriously argue that April Campanelli knowingly and intentionally waved her constitutional right to a jury trial. certification that the same claim made by TD Bank here (that she requested the guarantee from then) is pure fiction. She never made any such request to TD Bank. 8 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg1lof18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg9of16 Trans ID: LCV20232222896 Absent a knowing and intentional waiver, the waiver is unenforceable. V. The Purported Waiver is Defective on its Face Because it is Neither Clear or Conspicuous As TD bank correctly points out, in order for a jury trial waiver to be valid, it must be clear and unequivocal. (TD Bank’s brief memorandum of law, p. 5). However, TD Bank’s purported waiver is anything but clear and conspicuous. (TD’s jury trial waiver is found in plaintiffs memorandum of law, Exhibit B). Several observations are in order: First, as noted above, jury trial waiver is not valid unless it is made knowingly and intentionally. The courts look at the totality of circumstances. Thus, even if, arguendo, the jury trial waiver in this case were clear and unequivocal as TD claims (it is no?), it still would not be enforceable based_on the totality of other factors demonstrating that Ms. Campanelli never knowingly waived her constitutional right (i.e., no legal representation, no actual negotiating or bargaining, no equality of bargaining power, rushed and stressful closing without advance notice, etc.). 4 4 The Federal District Court for the Eastern District of Pennsylvania dealt with this very issue in First Union Nat. Bank, supra. There, the court held that the jury trial waiver was “conspicuous”. Nonetheless, although the written waiver itself was valid, the court held that based on other factors, the waiver was unenforceable (ie., gross disparity in bargaining power, no opportunity for meaningful negotiation, etc.). First Union Nat. . Bank, 164 F. Supp. 2d at 664-665. Moreover, examining the jury trial waiver in First Union Nat. Bank, and comparing it to TD Bank’s waiver in this case, is illuminating. In First Union, the waiver approved by the court is entirely in capital letters, it explicitly refers to “litigation“ twice, and it clearly defines. the scope of the waiver as referring to CAM-L-001259-23 10/13/2023 3:26:13 PM Pg12of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 10 of 16 Trans ID: LCV20232222896 However, the jury trial waiver here is anything but clear and unequivocal. The ourt should examine the actual guarantee - not the reproduction of the waiver shown in TD Bank’s brief. In its brief, TD takes the jury waiver out of context, reproduces it with two other short passages also taken out of context, uses much larger type, and separates the three passages with far more blank space in between than is found in the actual guarantee. (See TD Bank’s memorandum of law, pp. 2-4). In short, the reproduction of the waiver in TD’s brief is misleading. In TD’s guarantee agreement, the type used is tiny and the entire document is singled-spaced, with minimal space in between sections. It is written is convoluted “legalese”, with many terms only an attorney would understand. It is barely readable. (TD’s brief, Exhibit B). A trained lawyer could, given sufficient time, study the guarantee and eventually understand all of its various terms and waivers. A non- lawyer has little chance of understanding its term — and if the guarantor has to sign the document standing up, under stressful condition, in a rush, without the benefit of counsel (as occurred here), she would have zero chance of understanding it. A case precisely on point is Fairfield Leasing v. Techni-Graphics, 256 NJ. Super. 538 (Law Div. 1992). There, the court analyzed a jury trial waiver embedded in a contract very similar to the guarantee agreement here - single-spaced with tiny disputes arising out of the underlying loan. The First Union waiver is comprehensible to a non-lawyer. By contrast, TD Bank’s waiver here is formatted in tiny print, single spaced, and essentially unreadable. TD’s one-sentence waiver is so vague in its wording that even an intelligent reader would not really understand what it was referring to — it does not even mention “lawsuit” or “litigation”. 10 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg13o0f18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 11 of 16 Trans ID: LCV20232222896 print. Noting that the guarantee was a standardized form (a “contract of adhesion”) and that there was no meaningful bargaining over its terms, the court succinctly described the guarantee as follows: .. It is a classic example of a document which has been prepared with the intent that it neither be negotiated nor read.” (emphasis supplied) Fairfield Leasing, 256 N.J. Super. at 540 (Law Div. 1992). After viewing all of the relevant factors (not only the guarantee agreement itself, but the lack of meaningful negotiation, lack of legal representation, etc.), the Fairfield Leasing court concluded: In view of this strong presumption the defendants have a very heavy burden of proving that the plaintiffs knowingly, voluntarily and intentionally agreed upon the jury waiver provision in the 1978 Agreement. A constitutional guarantee so fundamental as the right to jury trial cannot be waived unknowingly by mere insertion of a waiver provision on the twentieth page of a twenty-two page standardized form contract. (emphasis supplied). Fairfield Leasing, 256 N.J. Super. at 542. Moreover, the very wording of TD’s jury waiver is misleading. There is no actual heading, just two words at the beginning of the sentence (“Waive Jury”). Remarkably, nowhere does the word “lawsuit” or “litigation” appear in the one- sentence waiver. Instead, the waiver refers to “any action, proceeding or counter- claim“. To a person not schooled in the law, this choice of words does not even make it clear that the waiver has something to do with a lawsuit. il CAM-L-001259-23 10/13/2023 3:26:13 PM Pg14o0f18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 120f16 Trans ID: LCV20232222896 Equally misleading, by its express terms the waiver is unreasonably broad and ambiguous. Read literally, it would include a waiver of jury trial in the future as to events that have not even occurred yet. Moreover, the wording lacks specificity - it fails to define the scope of the waiver. It is so generic that a non-lawyer would not know whether it refers to this particular loan, other transactions with TD Bank in the future, statutory claims (like E.C.O.A.), or something else altogether. TD claims that the waiver is “conspicuous” merely because it is in bold type. That is simply not plausible. The type is so tiny and the spacing is so dense, that even though the waiver is technically in “bold” type, it does not stand out. TD’s guarantee agreement is same type of standardized, small-print “contract of adhesion” that the court criticized in Fairfield Leasing, supra. Moreover, it is noteworthy that there are several other sections in the guarantee agreement that are also in “bold” type, but like the jury waiver those sections are not “conspicuous” because of the exceedingly small print and single- spaced formatting. (See, e.g., for example the bold-type lines in the “Duration of Guarantee”, “Guarantor’s Authorization to Lender”, and “Miscellaneous Provisions — Governing Law” sections. Certain lines in those sections are also in bold type, but they do not stand out because of the tiny type and crowded spacing). In short, the guarantee document is so difficult to read because of the small type, tight spacing, and overall formatting, it is hard to believe that it was designed 5 Please see discussion infra regarding the legal consequence of TD’s failure to reference “statutory claims” explicitly in the jury trial waiver. CAM-L-001259-23 10/13/2023 3:26:13 PM Pg15of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 13 of 16 Trans ID: LCV20232222896 with anything other than an intent to obfuscate and to hide the more objectionable provisions — including waiver of the guarantor’s constitutional right to a jury trial. Vi Plaintiff's Argument is Even Weaker in this Case Because Ms. Campanelli’s Defense Involves a Statutory Claim, and Statutory Claims are Not Subject to Waiver Unless Explicitly Listed April Campanelli’s defenses are based on a statutory claim, the Equal Credit Opportunity Act, 15 U.S.C. 1691 et. seq. Our Appellate Division has ruled that when a party is asked to waive a statutory claim, it must be made clear in the jury trial waiver. A leading case is Noren v. Heartland Payment Sys., Inc., 448 N.J. Super. 486 (App. Div. 2017), which deals with a jury trial waiver involving a dispute under New Jersey’s Conscientious Employee Protection Act (CEPA), a statutory claim The employment contract contained a jury waiver. The Appellate Division ruled that it was reversible error to deny the employee’s right to a jury trial. The wording of the jury trial waiver in Noren was similar, if not identical to, the waiver in this case.’ There was no mention of the statutory claim under CEPA (either specifically or by category). The Appellate Division ruled that a jury trial waiver is not enforceable unless its wording makes it clear that statutory rights are 6 The employee waived his right to trial by jury “in any suit, action or proceeding under, in connection with, or to enforce this Agreement”. Noren, 448 N.J. Super. at 492. 13 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg16o0f18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 14 0f 16 Trans ID: LCV20232222896 being relinquished. No magic language is required. However, the wording must put the party on notice that statutory rights are is being surrendered: the provision must be grounded in “plain language that would be clear and understandable to the average" person that Statutory rights are being waived. Id. at 446. In short, to effect a waiver, the language must clearly explain (1) what right is being surrendered and (2) the nature of the claims covered by the waiver. (emphasis supplied). Noren, 448 N.J. Super. at 495. Also highly relevant is the Supreme Court’s decision in Garfinkel_v. Morristown Obstetrics, 168 N.J. 124 (2001). There, the Supreme Court analyzed the scope of an arbitration agreement embodied in an employment contract. (Arbitration agreements are de facto waivers of the right to jury trial). The issue was whether the particular wording of the arbitration clause included a waiver of the right to litigate claims arising under New Jersey’s Law Against Discrimination (“LAD”), a statutory claim. The Supreme Court noted that the LAD is a statutory claim, and observed that the specific wording in the mandatory arbitration agreement did not mention, either expressly or by general reference, statutory claims as being within the scope of the agreement. The court held that statutory LAD claims were outside the scope of the arbitration agreement: To pass muster, however, a waiver-of-rights provision should at least provide that the employee agrees to arbitrate all statutory claims arising out_of the employment relationship or _its termination. It should also reflect the employee's general understanding of the type of claims included in the waiver, e.g., workplace discrimination claims. (emphasis supplied). 14 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg17o0f18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 15 0f 16 Trans ID: LCV20232222896 Garfinkel v. Morristown Obstetrics, 168 N.J. at 135. Thus, the employee’s claims arising under the LAD in Garfinkel were outside the scope of the arbitration agreement, and the employee was free to pursue his remedies in court. The wording of the agreement did not fairly put the employee on notice that statutory claims were included. Because Ms. Campanelli‘s E.C.O.A. claim is based on statute, TD Bank’s purported jury trial waiver is inherently defective. There is no mention whatsoever of her statutory rights under E.C.O.A. in the waiver. The wording is so broad, and so ambiguous, that the average person would have no idea she is relinquishing her rights under a federal statute, E.C.O.A. (or any other statute for that matter). In short, even if TD’s jury trial waiver were clear and conspicuous (it is not). > the waiver would nonetheless be unenforceable because it fails to include any mention of “statutory” claims generally, or E.C.O.A. specifically. 15 CAM-L-001259-23 10/13/2023 3:26:13 PM Pg18of18 Trans ID: LCV20233115817 CAM-L-001259-23 08/01/2023 8:55:08 AM Pg 16 of 16 Trans ID: LCV20232222896 CONCLUSION The court should deny plaintiff's motion to strike defendant’s jury trial demand, with prejudice. Even at this early stage, the evidence shows there are multiple legal grounds to deny the motion. The purported jury trial waiver is inherently defective as a matter of constitutional law, and there is certainly a strong possibility that April Campanelli will prevail on her ECOA claim — thereby making the entire guarantee agreement, including the jury trial waiver, void. If, arguendo, the court disagrees, the court should deny the motion without prejudice. The parties would be free to revisit the issue after all discovery is done (I note that discovery has just begun in this case). As yet another alternative, the court could order trial by an advisory jury, whose verdict would guide the court’s ultimate disposition of the case. It would be completely fair - the right to a jury trial is a fundamental, constitutional right of all citizens. Plaintiff has no cognizable right — by statute or constitution — to avoid a jury trial. All doubts should be resolved in favor of permitting a jury trial. I take this opportunity to thank Your Honor for your consideration. Respectfully submitted, /S/Joseph Albanese JOSEPH ALBANESE, Esq. Attomey for Defendant, April Campanelli 16