ORDER
THIS CAUSE is before the Court on Defendant’s Motion to Strike Plaintiffs Demand for Jury Trial (“Motion to Strike,” Doc. 13) and Defendant’s Motion to Dismiss (Doc. 32). Plaintiffs filed responses in opposition. (See Resp. Mot. Strike, Doc. 17; Resp. Mot. Dismiss, Doc. 38). With leave, (see Dec. 28, 2015 Endorsed Order, Doc. 19), Defendant also filed a Reply to Response in Opposition to Motion to Strike (Doc. 24). For the reasons set forth herein, both motions will be denied.
In 2006, Plaintiffs entered into a Note and Mortgage for residential property. (See Mortg., Doc, 24-1, at 1-2). Thereafter, Plaintiffs filed a voluntary Chapter 7 petition in bankruptcy. (Am. Compl., Doc. 31, ¶ 16). Plaintiffs listed the debt on the Note and Mortgage as being owed to Defendant in their bankruptcy filing. (Id. ¶ 19; Schedule D, Ex. B. to Am. Compl., Doc. 31-1, at 6).
Despite the discharge in bankruptcy, Defendant allegedly began calling and sending mail to Plaintiffs in an attempt to collect on the debt. (Am. Compl. ¶¶ 37, 40, 43). As a result of Defendant’s alleged attempts to collect on the debt, Plaintiffs brought this lawsuit alleging violations of the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq., and the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227.
II. Motion to Strike
Defendant moves to strike Plaintiffs’ jury demand pursuant to a jury trial waiver provision in Plaintiffs’ Mortgage. Paragraph twenty-five of the Mortgage provides as follows: .
25. Jury Trial Waiver. The Borrower hereby waives any right to a trial by jury in any action, proceeding, claim, or counterclaim, whether in contract or tort, at law or in equity, arising out of or in any way related to this Security Instrument or the Note.
(Mortg. at 11). The parties do not dispute the validity of the Mortgage. Rather, Plaintiffs argue that this lawsuit is not “in any way related to” the Note or Mortgage, and, even if it is, then the waiver was not made knowingly and voluntarily. Defendant argues that this lawsuit is within the scope of the jury trial waiver and that the waiver is valid.
A. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(f), the Court may, on motion, “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” However, motions to strike are generally disfavored by the courts and “should be granted only if ‘the matter sought to be omitted has no possible relationship to the controversy, may confuse the issues, or otherwise prejudice a party.’ ” Schmidt v. Life Ins. Co. of N. Am.,
The Seventh Amendment to the United States Constitution “provides that in Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved.” Chauffeurs, Teamsters & Helpers, Local No. S91 v. Terry,
In determining whether a waiver was made knowingly and voluntarily, courts consider the following factors: “(1) the conspicuousness of the provision in the contract; (2) the level of sophistication and experience of the parties entering into the contract; (3) the opportunity to negotiate terms of the contract; (4) the relative bargaining power of each party; and (5) whether the waiving party was represented by counsel.” Allyn v. W. United Life Assurance Co.,
B. Analysis
Defendant relies on a series of decisions by district courts in the Eleventh Circuit for the proposition that FCCPA and TCPA claims are sufficiently related to mortgage documents to allow similar waivers to be enforced. See, e.g., Levinson v. Green Tree Servicing, LLC, No. 8:14—cv-2120-EAK-TGW,
While it is true that, but for the Mortgage, Defendant would not have attempted to collect the debt, the test for relatedness is not a strict but-for test. See Bah. Sales Assoc., LLC v. Byers,
III. Motion To Dismiss
Defendant argues that Counts III and IV of the Amended Complaint should be dismissed for failure to state a claim. Plaintiffs contend that both claims sufficiently state a claim for relief.
A. Legal Standard
“A pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a complaint for “failure to state a claim upon which relief can be granted.” In determining whether to dismiss under Rule 12(b)(6), a court accepts the factual allegations in the complaint as true and construes them in a light most favorable to the non-moving party. See United Techs. Corp. v. Mazer,
B. FCCPA (Count III)
In Count III, Plaintiffs assert a claim for violations of subsection 559.72(18) of the Florida Statutes, which prohibits direct communication with a debtor with respect to a debt “if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address.” “Actual knowledge is required to prove violations of Fla. Stat. § 559.72(18).” Nordwall v. PNC Mortg., No. 2:14-v-747-FtM-CM,
Plaintiffs allege that Defendant was put on notice that they were represented with respect to the debt when Defendant received notice of Plaintiffs’ bankruptcy case, which clearly listed the debt and also listed counsel of record on behalf of the Plain
A foreclosure proceeding is a very specific legal proceeding to terminate a mortgagor’s interest in property. Although the lender may be able to recover a judgment for any unpaid debt not satisfied by the foreclosure of the secured property, the goal of a foreclosure proceeding is related to the secured property, not the debt itself. A bankruptcy proceeding, on the other hand, is ultimately a proceeding to organize or liquidate all of the debtor’s financial obligations. Thus, when an attorney files a notice of appearance in a bankruptcy case, the scope of representation is readily ascertainable as being related to all collection efforts with respect to the debts listed in that bankruptcy action. Here, Plaintiffs have alleged, and Defendant does not dispute, that the debt was listed as such in Plaintiffs’ bankruptcy proceedings, and Defendant received notice of those proceedings, which notice included the name and address of Plaintiffs’ counsel. This is sufficient to state a claim under the FCCPA. See Lapointe v. Bank of Am., N.A., No. 8:15-cv-1402-T-26EAJ,
C. TCPA (Count IV)
In Count IV of the Amended Complaint, Plaintiffs assert a claim for relief pursuant to the TCPA, which provides, in relevant part, that “[i]t shall be unlawful for any person ... to make any call (other than a call ... made with the prior express consent of the called party) using any automatic telephone dialing system or an artificial or prerecorded voice ,.. to any telephone number assigned to a ... cellular telephone service.” 47 U.S.C. § 227(b)(l)(A)(iii). Plaintiffs allege that Defendant placed several calls to Plaintiffs’ cellular telephones, using an automated telephone dialing system or an artificial or prerecorded voice, without Plaintiffs’ prior express consent. This is sufficient to state a claim under the TCPA.
To the extent Defendant argues that Plaintiffs’ allegations with respect to the revocation of any consent are insufficient, this argument is not before the Court. “Prior express consent is an affirmative defense for which the defendant bears the burden of proof.” Lardner
Plaintiffs plead that they did not give Defendant prior express consent to contact them. Although Plaintiffs also asserted that, if they did give consent, it was subsequently revoked, this allegation is not sufficient to establish the existence of the affirmative defense of consent on the face of the Amended Complaint. Defendant has not pointed to any allegations that Plaintiffs did in fact give prior express consent to be contacted, and there is no such allegation in the Amended Complaint. Furthermore, because it is not clear from the pleadings that Plaintiffs provided consent, any ruling on the issue of revocation of consent would be advisory in nature. This Court is prohibited from issuing such rulings. Chafin v. Chafin, — U.S. -,
IV. Conclusion
In accordance with the foregoing, it is hereby ORDERED and ADJUDGED as follows:
1. Defendant’s Motion to Strike Plaintiffs Demand for Jury Trial (Doc. 13) is DENIED.
2. Defendant’s Motion to Dismiss (Doc. 32) is DENIED.
DONE and ORDERED.
Notes
. Where, as here, an attachment contains multiple documents, the pinpoint citation will be to the electronic page number.
. Defendant also argues that the Notice of Discharge is insufficient to place it on actual notice that Plaintiffs were represented with respect to the debt. However, Count III is based only on Defendant’s alleged receipt of the Notice of Chapter 7 Bankruptcy Case.