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Filing # 71770255 E-Filed 05/07/2018 02:37:59 PM
IN THE CIRCUIT COURT OF THE
15 JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
Case No.: 50-2017-CA-013348-XXXX-MB (AD)
6654 NW 27 AVENUE LLC, a Florida limited liability company,
Plaintiff/Counter-Defendant,
ve
PINCUS CAPITAL LLC, a Delaware limited liability company,
THE BANYANS AT BROKEN SOUND PROPERTY OWNERS’
ASSOCIATION, INC., a Florida not-for-profit corporation,
COUNTRY CLUB MAINTENANCE ASSOCIATION, INC., a
Florida not-for-profit corporation, Unknown Parties in Possession,
if living, and all Unknown Parties claiming by, through, under or
against the above named Defendant(s), who are not known to be
dead or alive, whether said Unknown Parties may claim an interest
as Spouse, Heirs, Devisees, Grantees or Other Claimants,
Defendants,
MARK BENUN, an individual,
Defendant/Counter-Plaintiff.
/
PLAINTIFF/COUNTER-DEFENDANT’S MOTION TO STRIKE
DEFENDANT/COUNTER-PLAINTIFV’S JURY DEMAND
The Plaintiff/Counter-Defendant, 6654 NW 27 AVENUE LLC (the “Lender”), hereby
moves the court for the entry of an order striking the jury trial demand the Defendant/Counter-
Plaintiff, MARK BENUN (“Benun”), included in his Answer, Affirmative Defenses and
Counterclaim (filed February 20, 2018) and as grounds therefor states:
1. On December 8, 2017, the Lender initiated this action by filing its Verified
Complaint (the “Complaint”) wherein it asserted one claim for enforcement of a Promissory
Note (the “Note”) Benun and the Defendant, Pincus Capital LLC (“Pincus”), jointly and
PIPER. RADAR ARLE AAAI FL Anan ARER AAA ALR neiIngzingsa an.nz.cn An
FILE. PALI DCEAUN UUUNTT, FL, ONARUIN IR. BUUN, ULERN, YO/UlIZU 10 UZ.9/.09 FIMseverally as borrowers (collectively, the “Borrowers” or “Makers”), had executed in favor of the
Lender and a second claim for foreclosure of the Mortgage and Security Agreement (the
“Mortgage”) Pincus had executed as security for payment of the Note to the Lender.
2. On February 20, 2018, the Borrowers filed their Answer, Affirmative Defenses
and Counterclaim in resnonse to the Complaint.
3. In the Counterclaim, Benun! attempted to assert claims against the Lender for
quiet title, declaratory relief, breach of Florida’s Consumer Collection Practices Act (“FCCPA”)
and breach of Federal Fair Debt Collection Practices Act (“FDCPA”) and also demanded trial by
jury on all issues so triable.
4. However, Benun is not entitled to a jury trial on any of his counterclaims.
5. First, the counterclaims for quiet title and declaratory relief are equitable in
nature, such that no right to jury trial attaches to those non-legal claims. See, Kinney v.
Countrywide Home Loans Servicing, L.P., 165 So. 3d 691 (Fla. 4"* DCA 2015).
6. Second, the counterclaims for breach of FCCPA and breach of FDCPA arise
directly out of the Note, such that Benun has expressly, conspicuously and unambiguously
waived his right to a jury trial on those legal claims.
7. In particular, the Note, which Benun personally signed as a Maker, provides, in
BOLD CAPITAL letters:
MAKER HEREBY, AND PAYEE BY ITS ACCEPTANCE OF THIS NOTE,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE
RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY
CLAIMS, CROSS-CLAIMS OR THIRD-PARTY CLAIMS) BASED
HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH,
THIS NOTE OR ANY DOCUMENT EXECUTED IN CONJUNCTION
HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING,
' Only Benun (not Pincus) brought the Counterclaim.STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF
EITHER PARTY,
MAKER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR
AGENT OF PAYEE OR PAYEE’S COUNSEL HAS REPRESENTED,
EXPRESSLY OR OTHERWISE, THAT PAYEE WOULD NOT, IN THE
EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER
OF RIGHT TO JURY TRIAL PROVISION. THIS PROVISION IS A
MATERIAL INDUCEMENT TO THE PAYEE ACCEPTING THIS NOTE
AND MAKING ANY LOAN, ADVANCE OR OTHER EXTENSION OF
CREDIT TO THE MAKER AND SHALL SURVIVE DURING THE
ENTIRE TIME THAT ANY AMOUNT OF THE NOTE SHALL REMAIN
UNPAID.
(Note, pp. 2-3).
8. In fact, the foregoing waiver stretches from the second page of the Note, right
above Benun’s initials, to the third page of the Note, right above his full signature.
9. Likewise, the Mortgage also provides, in BOLD CAPITAL letters:
WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY
HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION
WITH THIS MORTGAGE AND ANY DOCUMENT EXECUTED IN
CONJUNCTION THEREWITH OR ANY COURSE OF CONDUCT,
COURSE OF DEALING, STATEMENT (WHETHER ORAL OR
WRITTEN) OR ACTIONS OF OR BY MORTGAGOR OR MORTGAGEE.
(Mortgage, p. 20, J 4.1).
10. Florida law is well established that “[w]aivers of the right to jury trial by contract
are enforceable and will be upheld.” Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d
576, 578 (Fla, S™ DCA 1992). “A trial court commits reversible error when it chooses to ignore
the parties’ contractual waiver of a jury trial and orders a common law jury trial unless there is
sufficient showing why the waiver should not be enforced.” Jd; Accord, Gelco Corp. v.
Campanile Motor Service, Inc., 677 So. 2d 952 (Fla. 3 DCA 1996). In this case, where Benun
“knowingly, voluntarily and intentionally” waived his right to a jury trial, no such showing hasbeen, or can be, made. 677 So. 2d at 953 (“no such circumstances have been alleged”). In short,
“a court cannot impose a common law jury trial upon parties who have contractually agreed to
try their case to the court.” 603 So. 2d at 579.
11. Federal law is no different. “[W]hen a jury trial is validly waived, courts
regularly mandate the enforcement of the waiver.” Hancock Rank v Rright Lake Estates, I.1.C,
2013 U.S. Dist. LEXIS 53557, *3 (M.D. Fla. April 15, 2013). “A party may validly waive its
Seventh Amendment right to a jury trial so long as the waiver is knowing and voluntary.”
Martorella v. Deutsche Bank Nat'l Trust Co., 2013 U.S. Dist. LEXIS 36886, *4 (S.D. Fla. March
18, 2013). “[C]ourts consider the conspicuousness of the waiver provision, the parties’ relative
bargaining power, the sophistication of the party challenging the waiver, and whether the terms
of the contract were negotiable.” Jd. “Court[s] ask[] whether, in light of all the circumstances,
the Court finds the waiver to be unconscionable, contrary to public policy, or simply unfair.” Id.
at *5 (internal quotations and citations omitted).
12. With respect to notes and mortgages, “[c]ourts routinely and regularly enforce
jury trial waivers found in loan agreements.” Jd. at *10. Courts avoid labeling boilerplate
mortgages of banks (let alone, of a personal seller, like in this case) as per se “non-negotiable”
because such form contracts are “necessary for the efficiency of large financial institutions.”
Oglesbee v. IndyMac Financial Services, Inc., 675 F. Supp. 2d 1155, 1158 (S.D. Fla. December
18, 2009).
13. The jury trial waiver in this case is phrased in the broadest language possible
under Florida law, barring all jury trials for all claims “based [Jon or arising out of, under, or in
connection with, this Note, or any document executed in conjunction herewith, or any course of
conduct, course of dealing, statements (whether verbal or written) or actions of either party.”(Note, p. 2).
14. There is no question Benun’s counterclaims for breach of FCCPA and breach of
FDCPA “aris[e] out of, under, or in connection with” the Note. In fact, those claims are strictly
based on the Lender’s collection activities for the debt due under the Note. (See, Counterclaim,
Counts II, TV).
15. Courts have routinely held that claims based on alleged violations of FCCPA and
FDCPA fall directly within the scope of such a broad jury trial waiver. Levinson v. Green Tree
Servicing, LLC, 2015 U.S. Dist. LEXIS 54847, *4 (M.D. Fla. April 27, 2015) (“Plaintiff's
consumer protection claims relate to the mortgage contract. Plaintiffs knowingly and voluntarily
waived their right to a jury trial upon signing the mortgage, thereby creating a valid waiver of
jury trial.”); Montoya v. Nationstar Mortgage, LLC, 2017 U.S. Dist. LEXIS 185906, *6 (M.D.
Fla. Nov. 9, 2017) (Plaintiff's FCCPA and FDCPA claims “relate to the note and mortgage and
are therefore, subject to the waiver contained in the mortgage.”); Martorella v. Deutsche Bank
Nat’l Trust Co., 2013 U.S. Dist. LEXIS 36886, *8-9 (S.D. Fla. March 18, 2013) (“The Court
rejects Martorella’s argument that this case is like Jones,? and that her FDUTPA and FCCPA
claims are not in any way related to the mortgage, and thus not within the scope of the jury trial
waiver provision. Martorella’s FDUTPA and FCCPA claims arise from collection activities for
amounts due under the mortgage and note that she executed.”); Belin v, Litton Loan Servicing,
LP, 2006 U.S. Dist. LEXIS 48547, * 6 (M.D. Fla. July 17, 2006) (“The Court rejects Mr. Belin’s
2 Jones v. Bank of America, N.A., 2012 U.S. Dist. LEXIS 104793 (M.D. Fla. July 27, 2012). The
Martorella court easily distinguished Jones because, unlike in Martorella, “[i]n Jones, the court
concluded that the Defendant failed to demonstrate that the jury trial waiver encompassed
Plaintiffs consumer protection action.” Martorella at *8 (emphasis added). The same
ion annlies in this case because, as set forth herein, the Lender has sufficiently
demonstrated | that Benun’s jury trial waiver encompasses his FDCPA and FCCPA claims based
on the Lender’s collection activities to collect the debt under the Note and Mortgage.argument that his FDCPA and FCCPA claims are not in any way related to the mortgage, and
thus not within the scope of the jury trial waiver provision, since his claims arise from collection
activities for amounts due under the mortgage and note that he executed.”); Harrington v.
Roundpoint Mortgage Servicing Corp., 2016 U.S. Dist. LEXIS 18438, *8-9 (M.D. Fla. Feb. 16,
2016) (“Defendants’ alleged violations of the TCPA and FCCPA are a direct result of Plaintiff's
failure to pay as contractually obligated under the Mortgage. Thus, this dispute exists because of
the Mortgage. Furthermore, Defendants’ actions are not outside the scope of the contract
because they do not extend beyond the reasonable expectation of the contracting parties. It is
reasonable to expect a mortgage holder to resort to debt collection practices in order to collect on
an outstanding debt.... Therefore, the Court finds Plaintiff's claims are within the scope of the
waiver provision.”)
16.. Based on the foregoing points and authorities, Benun’s jury trial demand should
be stricken from his Counterclaim.
WHEREFORE, the Lender respectfully requests that the court enter an order striking the
jury trial demand Benun included in his Answer, Affirmative Defenses and Counterclaim (filed
February 20, 2018) and grant such other and further relief as the court deems just and proper.
CERTIFICATE OF SERVICE
1 HEREBY CERTIFY that a copy of the foregoing has been served via email on Stuart
J. Zoberg, Esq., [szoberg@shirlaweroup.com] [office@shirlaweroup.com], Shir Law Group,
P.A., Attorneys for Pincus Capital LLC and Mark Benun, 1800 NW Corporate Blvd., Suite 200,
Boca Raton, FL 33431, Katherine C. Nuckolls, Esq., [knuckolls@randallkroger.com], Andrew
G. Elliott, Esq., [aelliott@randallkroger.com] [marie@randallkroger.com], Randall K. Roger &Associates, P.A., Attorneys for Country Club Maintenance Association, Inc., 621 NW 53" Street,
Suite 300, Boca Raton, Florida 33487, on this _‘|_ day of May, 2018.
SHAPIRO, FISHMAN & GACHE, LLP
Attorneys for 6654 NW 27 Avenue LLC
2424 North Federal Highway, Suite 360
Boca Raton, Florida 33431
(561) 287-5599 (phone)
(561) 287-5589 (fax)
Ronald M.‘Gaché, Esq.
Florida Bar No. 699306
rgache@logs.com
Scott A. Simon, Esq.
Florida Bar No. 0088676
ssimon@logs.com
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Filing # 71770255 E-Filed 05/07/2018 02:37:59 PM IN THE CIRCUIT COURT OF THE 15 JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA Case No.: 50-2017-CA-013348-XXXX-MB (AD) 6654 NW 27 AVENUE LLC, a Florida limited liability company, Plaintiff/Counter-Defendant, ve PINCUS CAPITAL LLC, a Delaware limited liability company, THE BANYANS AT BROKEN SOUND PROPERTY OWNERS’ ASSOCIATION, INC., a Florida not-for-profit corporation, COUNTRY CLUB MAINTENANCE ASSOCIATION, INC., a Florida not-for-profit corporation, Unknown Parties in Possession, if living, and all Unknown Parties claiming by, through, under or against the above named Defendant(s), who are not known to be dead or alive, whether said Unknown Parties may claim an interest as Spouse, Heirs, Devisees, Grantees or Other Claimants, Defendants, MARK BENUN, an individual, Defendant/Counter-Plaintiff. / PLAINTIFF/COUNTER-DEFENDANT’S MOTION TO STRIKE DEFENDANT/COUNTER-PLAINTIFV’S JURY DEMAND The Plaintiff/Counter-Defendant, 6654 NW 27 AVENUE LLC (the “Lender”), hereby moves the court for the entry of an order striking the jury trial demand the Defendant/Counter- Plaintiff, MARK BENUN (“Benun”), included in his Answer, Affirmative Defenses and Counterclaim (filed February 20, 2018) and as grounds therefor states: 1. On December 8, 2017, the Lender initiated this action by filing its Verified Complaint (the “Complaint”) wherein it asserted one claim for enforcement of a Promissory Note (the “Note”) Benun and the Defendant, Pincus Capital LLC (“Pincus”), jointly and PIPER. RADAR ARLE AAAI FL Anan ARER AAA ALR neiIngzingsa an.nz.cn An FILE. PALI DCEAUN UUUNTT, FL, ONARUIN IR. BUUN, ULERN, YO/UlIZU 10 UZ.9/.09 FIMseverally as borrowers (collectively, the “Borrowers” or “Makers”), had executed in favor of the Lender and a second claim for foreclosure of the Mortgage and Security Agreement (the “Mortgage”) Pincus had executed as security for payment of the Note to the Lender. 2. On February 20, 2018, the Borrowers filed their Answer, Affirmative Defenses and Counterclaim in resnonse to the Complaint. 3. In the Counterclaim, Benun! attempted to assert claims against the Lender for quiet title, declaratory relief, breach of Florida’s Consumer Collection Practices Act (“FCCPA”) and breach of Federal Fair Debt Collection Practices Act (“FDCPA”) and also demanded trial by jury on all issues so triable. 4. However, Benun is not entitled to a jury trial on any of his counterclaims. 5. First, the counterclaims for quiet title and declaratory relief are equitable in nature, such that no right to jury trial attaches to those non-legal claims. See, Kinney v. Countrywide Home Loans Servicing, L.P., 165 So. 3d 691 (Fla. 4"* DCA 2015). 6. Second, the counterclaims for breach of FCCPA and breach of FDCPA arise directly out of the Note, such that Benun has expressly, conspicuously and unambiguously waived his right to a jury trial on those legal claims. 7. In particular, the Note, which Benun personally signed as a Maker, provides, in BOLD CAPITAL letters: MAKER HEREBY, AND PAYEE BY ITS ACCEPTANCE OF THIS NOTE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT EITHER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION (INCLUDING, BUT NOT LIMITED TO, ANY CLAIMS, CROSS-CLAIMS OR THIRD-PARTY CLAIMS) BASED HEREON OR ARISING OUT OF, UNDER, OR IN CONNECTION WITH, THIS NOTE OR ANY DOCUMENT EXECUTED IN CONJUNCTION HEREWITH, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, ' Only Benun (not Pincus) brought the Counterclaim.STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF EITHER PARTY, MAKER HEREBY CERTIFIES THAT NO REPRESENTATIVE OR AGENT OF PAYEE OR PAYEE’S COUNSEL HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT PAYEE WOULD NOT, IN THE EVENT OF SUCH LITIGATION, SEEK TO ENFORCE THIS WAIVER OF RIGHT TO JURY TRIAL PROVISION. THIS PROVISION IS A MATERIAL INDUCEMENT TO THE PAYEE ACCEPTING THIS NOTE AND MAKING ANY LOAN, ADVANCE OR OTHER EXTENSION OF CREDIT TO THE MAKER AND SHALL SURVIVE DURING THE ENTIRE TIME THAT ANY AMOUNT OF THE NOTE SHALL REMAIN UNPAID. (Note, pp. 2-3). 8. In fact, the foregoing waiver stretches from the second page of the Note, right above Benun’s initials, to the third page of the Note, right above his full signature. 9. Likewise, the Mortgage also provides, in BOLD CAPITAL letters: WAIVER OF JURY TRIAL. MORTGAGOR HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS MORTGAGE AND ANY DOCUMENT EXECUTED IN CONJUNCTION THEREWITH OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENT (WHETHER ORAL OR WRITTEN) OR ACTIONS OF OR BY MORTGAGOR OR MORTGAGEE. (Mortgage, p. 20, J 4.1). 10. Florida law is well established that “[w]aivers of the right to jury trial by contract are enforceable and will be upheld.” Vista Centre Venture v. Unlike Anything, Inc., 603 So. 2d 576, 578 (Fla, S™ DCA 1992). “A trial court commits reversible error when it chooses to ignore the parties’ contractual waiver of a jury trial and orders a common law jury trial unless there is sufficient showing why the waiver should not be enforced.” Jd; Accord, Gelco Corp. v. Campanile Motor Service, Inc., 677 So. 2d 952 (Fla. 3 DCA 1996). In this case, where Benun “knowingly, voluntarily and intentionally” waived his right to a jury trial, no such showing hasbeen, or can be, made. 677 So. 2d at 953 (“no such circumstances have been alleged”). In short, “a court cannot impose a common law jury trial upon parties who have contractually agreed to try their case to the court.” 603 So. 2d at 579. 11. Federal law is no different. “[W]hen a jury trial is validly waived, courts regularly mandate the enforcement of the waiver.” Hancock Rank v Rright Lake Estates, I.1.C, 2013 U.S. Dist. LEXIS 53557, *3 (M.D. Fla. April 15, 2013). “A party may validly waive its Seventh Amendment right to a jury trial so long as the waiver is knowing and voluntary.” Martorella v. Deutsche Bank Nat'l Trust Co., 2013 U.S. Dist. LEXIS 36886, *4 (S.D. Fla. March 18, 2013). “[C]ourts consider the conspicuousness of the waiver provision, the parties’ relative bargaining power, the sophistication of the party challenging the waiver, and whether the terms of the contract were negotiable.” Jd. “Court[s] ask[] whether, in light of all the circumstances, the Court finds the waiver to be unconscionable, contrary to public policy, or simply unfair.” Id. at *5 (internal quotations and citations omitted). 12. With respect to notes and mortgages, “[c]ourts routinely and regularly enforce jury trial waivers found in loan agreements.” Jd. at *10. Courts avoid labeling boilerplate mortgages of banks (let alone, of a personal seller, like in this case) as per se “non-negotiable” because such form contracts are “necessary for the efficiency of large financial institutions.” Oglesbee v. IndyMac Financial Services, Inc., 675 F. Supp. 2d 1155, 1158 (S.D. Fla. December 18, 2009). 13. The jury trial waiver in this case is phrased in the broadest language possible under Florida law, barring all jury trials for all claims “based [Jon or arising out of, under, or in connection with, this Note, or any document executed in conjunction herewith, or any course of conduct, course of dealing, statements (whether verbal or written) or actions of either party.”(Note, p. 2). 14. There is no question Benun’s counterclaims for breach of FCCPA and breach of FDCPA “aris[e] out of, under, or in connection with” the Note. In fact, those claims are strictly based on the Lender’s collection activities for the debt due under the Note. (See, Counterclaim, Counts II, TV). 15. Courts have routinely held that claims based on alleged violations of FCCPA and FDCPA fall directly within the scope of such a broad jury trial waiver. Levinson v. Green Tree Servicing, LLC, 2015 U.S. Dist. LEXIS 54847, *4 (M.D. Fla. April 27, 2015) (“Plaintiff's consumer protection claims relate to the mortgage contract. Plaintiffs knowingly and voluntarily waived their right to a jury trial upon signing the mortgage, thereby creating a valid waiver of jury trial.”); Montoya v. Nationstar Mortgage, LLC, 2017 U.S. Dist. LEXIS 185906, *6 (M.D. Fla. Nov. 9, 2017) (Plaintiff's FCCPA and FDCPA claims “relate to the note and mortgage and are therefore, subject to the waiver contained in the mortgage.”); Martorella v. Deutsche Bank Nat’l Trust Co., 2013 U.S. Dist. LEXIS 36886, *8-9 (S.D. Fla. March 18, 2013) (“The Court rejects Martorella’s argument that this case is like Jones,? and that her FDUTPA and FCCPA claims are not in any way related to the mortgage, and thus not within the scope of the jury trial waiver provision. Martorella’s FDUTPA and FCCPA claims arise from collection activities for amounts due under the mortgage and note that she executed.”); Belin v, Litton Loan Servicing, LP, 2006 U.S. Dist. LEXIS 48547, * 6 (M.D. Fla. July 17, 2006) (“The Court rejects Mr. Belin’s 2 Jones v. Bank of America, N.A., 2012 U.S. Dist. LEXIS 104793 (M.D. Fla. July 27, 2012). The Martorella court easily distinguished Jones because, unlike in Martorella, “[i]n Jones, the court concluded that the Defendant failed to demonstrate that the jury trial waiver encompassed Plaintiffs consumer protection action.” Martorella at *8 (emphasis added). The same ion annlies in this case because, as set forth herein, the Lender has sufficiently demonstrated | that Benun’s jury trial waiver encompasses his FDCPA and FCCPA claims based on the Lender’s collection activities to collect the debt under the Note and Mortgage.argument that his FDCPA and FCCPA claims are not in any way related to the mortgage, and thus not within the scope of the jury trial waiver provision, since his claims arise from collection activities for amounts due under the mortgage and note that he executed.”); Harrington v. Roundpoint Mortgage Servicing Corp., 2016 U.S. Dist. LEXIS 18438, *8-9 (M.D. Fla. Feb. 16, 2016) (“Defendants’ alleged violations of the TCPA and FCCPA are a direct result of Plaintiff's failure to pay as contractually obligated under the Mortgage. Thus, this dispute exists because of the Mortgage. Furthermore, Defendants’ actions are not outside the scope of the contract because they do not extend beyond the reasonable expectation of the contracting parties. It is reasonable to expect a mortgage holder to resort to debt collection practices in order to collect on an outstanding debt.... Therefore, the Court finds Plaintiff's claims are within the scope of the waiver provision.”) 16.. Based on the foregoing points and authorities, Benun’s jury trial demand should be stricken from his Counterclaim. WHEREFORE, the Lender respectfully requests that the court enter an order striking the jury trial demand Benun included in his Answer, Affirmative Defenses and Counterclaim (filed February 20, 2018) and grant such other and further relief as the court deems just and proper. CERTIFICATE OF SERVICE 1 HEREBY CERTIFY that a copy of the foregoing has been served via email on Stuart J. Zoberg, Esq., [szoberg@shirlaweroup.com] [office@shirlaweroup.com], Shir Law Group, P.A., Attorneys for Pincus Capital LLC and Mark Benun, 1800 NW Corporate Blvd., Suite 200, Boca Raton, FL 33431, Katherine C. Nuckolls, Esq., [knuckolls@randallkroger.com], Andrew G. Elliott, Esq., [aelliott@randallkroger.com] [marie@randallkroger.com], Randall K. Roger &Associates, P.A., Attorneys for Country Club Maintenance Association, Inc., 621 NW 53" Street, Suite 300, Boca Raton, Florida 33487, on this _‘|_ day of May, 2018. SHAPIRO, FISHMAN & GACHE, LLP Attorneys for 6654 NW 27 Avenue LLC 2424 North Federal Highway, Suite 360 Boca Raton, Florida 33431 (561) 287-5599 (phone) (561) 287-5589 (fax) Ronald M.‘Gaché, Esq. Florida Bar No. 699306 rgache@logs.com Scott A. Simon, Esq. Florida Bar No. 0088676 ssimon@logs.com