TD Bank, N.A. v. Ghosh, No. 437-6-11 Rdcv (Teachout, J., July 26, 2012)

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                                                STATE OF VERMONT

SUPERIOR COURT                                                                                   CIVIL DIVISION
Rutland Unit                                                                               Docket No. 437-6-11 Rdcv



TD BANK, N.A.,
     Plaintiff

           v.

ARUN K. GHOSH, et al.,
    Defendants



              DECISION ON MOTION TO STRIKE JURY DEMAND, MPR #3

        Plaintiff seeks foreclosure on commercial property that Defendants financed
through Plaintiff. Defendants have filed a counterclaim and made a jury demand.
Plaintiff moved to strike the jury demand on the grounds that the Defendants waived any
right to a jury trial in the transaction documents, and pursuant to the Entry Order of
December 19, 2011, an evidentiary hearing was held on May 14, 2012. Plaintiff is
represented by Attorney James B. Anderson. Defendants are represented by Attorney
Lisa Chalidze.

                                                       Findings of Fact

       Plaintiff TD Bank is a commercial lender that loaned the Defendants money to
purchase the Edelweiss commercial property that is the subject of this proceeding.
Brenda Wilk was the commercial loan officer for the transaction. The closing was held
on December 14, 2005. She was present, as was the seller’s attorney. All three
Defendants were present with their attorney, Thaddeus Lorentz. The bank had sent him
the proposed standard form closing documents two days prior to the closing.

        At the closing, Ms. Wilk presented the documents to Attorney Lorentz. They
included a note, mortgage, security agreement, and guaranty, all of which contained
waivers of the right to a jury trial in any actions of borrowers against the lender. In the
Note, there is a paragraph heading in all capital letters that states “JURY WAIVER.” In
the Mortgage, Commercial Security Agreement, and Commercial Guaranty, in each
document under a major section heading entitled “MISCELLANEOUS PROVISIONS,”
there is a subheading labeled “Waive Jury.” In each of these four documents, after such
heading, is a single sentence clearly stating that the parties waive their right to a jury trial
in any action that may be subsequently brought..
        Defendants’ attorney reviewed each of the documents with the three Defendants.
There was no objection raised as to any provision of any of the documents. There was no
attempt to negotiate a change to any of the documents. Ms. Wilk testified, and the Court
finds, that if borrowers at closings object to terms in the standard form documents offered
to them, the closing is suspended and further discussions and negotiations take place.
That has happened occasionally in Ms. Wilk’s experience as a commercial loan officer
over many years. The Court finds that Defendants had the opportunity to raise an
objection and seek to negotiate the term but did not do so. After the review of the
documents with their attorney, the Defendants executed all of the closing documents,
with no mention of the subject of waiver of the right to jury trial in the event of a lawsuit.

                                        Conclusions

        The trial court decision in Keybank Nat’l Assn v. Sports Odyssey, Inc., No 249-4-
09 (Eaton, J., Sept. 24, 2009) sets forth, in the first three paragraphs of the Conclusions
section (pp. 4-5), a complete description of the state of the law on the issue presented,
and this Court adopts that description as if fully set forth herein. See Decision at 2009
WL 6565299; http://www.vermontjudiciary.org/20062010%20TCdecisioncvl/2010-5-12-
5.pdf.

       The evidence in this case shows that Defendants knowingly and voluntarily
waived their right to a jury trial in connection with lawsuits arising out of the loan they
obtained from Plaintiff. The jury waiver provisions, like other provisions of the
financing instruments, could have been raised as issues for negotiation, but no attempt
was made to do so. The waiver provisions in each of the four documents were
highlighted by paragraph headings that are readily apparent in even a cursory review of
the documents. While terms of the documents were not individually negotiated, and
standard form documents provided by Plaintiff were used, the terms are not unusual for
commercial loans. The Defendants were not consumers but were seeking financing for a
commercial venture, and they were represented by counsel who specifically reviewed the
documents with them.

        Plaintiff has met its burden of proof to show a knowing and voluntary waiver of
the right to a jury trial in this case.

                                          ORDER

       The Motion to Strike Jury Demand (MPR #3), filed August 12, 2011, is granted.


       Dated at Rutland this 24th day of July, 2012.


                                                       ____________________________
                                                       Hon. Mary Miles Teachout
                                                       Superior Judge



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