UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA PRESIDENTIAL BANK, FSB, : : Plaintiff & Counter-Defendant , : Civil Action No.: 16-2412 (RC ) : v. : Re Document Nos.: 47, 48 : 1733 27TH STREET SE LLC, et al. , : : Defendants & Counter-Claimants. :
MEMORANDUM OPINION G RANTING P LAINTIFF ’ S M OTION FOR P ARTIAL S UMMARY J UDGMENT ; G RANTING P LAINTIFF ’ S M OTION TO S TRIKE J URY D EMAND
I. INTRODUCTION This suit arises from a fraughtlending relationship between Pl aintiff & CounterDefendant Presidential Bank, FSB ( “Presidential”) and Defendant s & Counter-Claimants Kevin Green and six LLC that he owns ( “Defendants”). Between 2006 and 2010, Presidential made a series of loans to Defendants s ecured with real property that D efendants owned. Beginning in 2014, Defendants struggled to make payments in compliance with their agreements with Presidential, and ultimately de faulted on their loans. The part ies entered into several modifications to the l ending agreements. One such modification was a forbearance agreement, whereby Presidential agreed not t o collect the money Defendants owed it until April 2017 in exchange for, among other things, r eceiving significant control over Defendants’ rental income. When Defendants defaulted agai n, Presidential demanded that Def endants pay all of the money they owed under the Forbearance Agreement. Presidential pursued two avenues of relief against Defendants: first, it filed a claim for a confessed judgment in Maryland state court, and second, it file d suit in D.C. Superior Court for2 conversion of the funds it should have had access to pursuant t o a lockbox agreement contained in the Forbearance Agreement. T he D.C. suit also sought the app ointment of a receiver to operate, manage, and control Defen dants’ properties. Defendants subsequently removed the case to this Court. Defendants res ponded to Presidential’s claims wi th twelve affirmative defenses and nine counterclaims against P residential. Since then, the Ci rcuit Court of Montgomery County, Maryland has entered a c onfessed judgment against Defen dants, and the Maryland Court of Special Appeals has denied D efendants’ motion to vacate it f or lack of personal jurisdiction. Based on the Court of Special App eals’s ruling, Pr esidential ha s moved to strike the jury demand contained in Defendants’ Answe r and Counterclaim, and for parti al summary judgment on eleven of Defendants’ twelve affirmative defenses and on its fi rst claim for relief in its counterclaim. For the reasons setforth below, the Court grants both of Presidential’s motions.

II. FACTUAL AND PROCED URAL BACKGROUND Defendants in this suit are six D istrict of Columbia limited li ability companies and Kevin Green, the sole management-member of the six LLCs. See Defs.’ Affirmative Defenses, Answers & Counter-Claims (“Answer ”) at 19–20, ECF No. 12. Between 2006 and 2010, Plaintiff Presidential Bank made several l oans to each of the LLCs, secur ed by deeds of trust and with each Defendant-LLC-owned apart ment building serving as collater al on the loans. Compl. ¶¶ 24–34, ECF No. 1-1; see also Compl. ¶ 5. When Defendants de faulted on the loans in 2014, th ey entered into a “Global Loan Modi fication Agreement.” Answer at 23; see also Compl. ¶ 9. However, in June 2015, Defendants again defaulted on the Global Loan Modification Agreement when they failed to make each of their loans current by January15, 2015. Compl. ¶ 11; Answer at 23. To cure this default, Defe ndants and Presidential entere d into a forbearance agreement in August 2015. Defs.’ Answer at 25; see also Compl. ¶ 12; Forbearance Agreement, ECF No. 17-3 2. Under the terms of the Forbear ance Agreement, Presidential a greed to delay collecting the amount due under the loans until April 1, 2017, see Forbearance Agreement at 5, and in exchange, Defendants entered in to a contract tha t contained a c onfessed judgment provision, a lockbox agreement, and a waiver of the right to a jury trial inany dispute arising out of the Forbearance Agreement or the unde rlying loans. Answer at 24; Fo rbearance Agreement at 5, 9. The confessed judgment provision al lowed Presidential’s attorne ys, upon any subsequent default by Defendants, to obtain a judgment in Presidential’s favor fro m the Circuit Court in Montgomery County, Maryland for “the amount of the unpaid princ ipal balance of the notes together with any accrued and unpaid i nterest, late charges and attorneys’ fees and costs incurred by the lender, together with all other costs and expenses incur red or accrued and unpaid under this agreement.” Forbearance Agreement at 9. Under the lockbox agreement, Defendants agreed to “continue to deposit all depos its in their possession, inclu ding but not limited to rents, relating to the Collateral Properties directly into” operating accounts controlled by Presidential. Id. at 5. The lockbox agreement also set t he priorities for how those fun ds would be spent. Id. at 5–6; Answer at 24. In May 2016, Defendants defaulte d on the Forbearance Agreement. Compl. ¶ 13; Answer at 28–29. Defendants were given until June 6, 2016, to cure the ir default. Compl. ¶ 14. When Defendants did not cure their default, Presidential declared al l of Defendants’ debt from the Forbearance Agreement, notes, gua ranty, and deeds of trust due. Id. ¶ 15. Around that time, Defendants stopped depositing money into the operating accounts in alleged violation of the lockbox agreement. Compl. ¶ 21. Following this deterioration in the lending relationship, Presi dential sought the confessed judgment specified in the Forbear ance Agreement, and was awarde d $3,314,295.63 by the4 Montgomery County Circuit Court on June 27, 2016. See Confessed Judgment, ECF No. 48-3. It also filed suit in D.C. Supe rior Court on July 18, 2016, seekin g damages for conversion of the money it believed Defendants should have still been depositing in the operating account pursuant to the lockbox agreement, as well as the appointment of a recei ver. See generally Compl. In December 2016, Defendants removed t he case to this Court based on the diversity of citizenship.
See Notice of Removal, ECF No. 1. Once the case had been removed, Defendants filed an emergency motion to stay the impending foreclosure sale of its properties or, in t he alternative, for a temporary restraining order. See Defs.’ Emergency Mot. Stay, ECF No. 8. The Court denied Defendants’ motion. See Order, ECF No. 11. Defendants subsequently answered Presidential’s complaint with twelve affirmative defenses and n ine counterclaims. See generally Answer. Defendants’ Answer also r equested that the Court “[f]in d the Forbearance Agreement referenced herein unc onscionable and void ab initio .” Answer at 47. Defendants informed the Court that following its denial of Defendants’ motion to stay, Defendants’ properties were sold on January 26, 2017. Id. at 29 These two suits—one in Maryland state court and one in D.C. fed eral court—proceeded concurrently for more than a y ear. Following the entry of the c onfessed judgment, Defendants moved to vacate it, arguing “prim arily that judgments by confes sion are disfavored in Maryland, and [that] the circuit court lacked personal jurisdiction over them because neither Mr. Green nor any of the LLCs had sufficient ties to Montgomery County.” Mot. Strike Ex. 14 (“Md. Op.”) at 3, ECF No. 47-16. The circuit cour t judge was unpersuaded, give n that the confessed judgment provision in the Forbearance Agr eement included a forum-selecti on clause, and declined to vacate the judgment. Id. at 4. He further explained that he “searched in vain for the a llegation of5 a potentially meritorious defen se” to the confessed judgment, b ut “never heard, never read in any of the documents that were submitted, what this meritorious def ense to the note might be.” Id. Defendants appealed, but the Mary land Court of Special Appeals affirmed the lower court’s refusal to vacate the c onfessed judgment in February 20 18. Id. at 10. The Court of Special Appeals highlighted tha t “absent fraud, duress, or mutu al mistake, ‘a party who signs a contract is presumed to have r ead and understood its terms and . . . the party will be bound by them when that document is executed.’” Id. at 8 (quoting Dashiell v. Meeks , 913 F.2d 10, 20 (Md. 2006)). It explained that “[ a]lthough Mr. Green contended, at oral argument, that the forum selection clause was not freel y negotiated, he did not make tha t assertion before the circuit court or in his brief, and he submitted no evidence in support of tha t claim. Because the contention was not made below, it [wa]s not befo re [the Court of Special Appea ls] for appellate review.” Id. at 8 n.5. All in all, the Court of Speci al Appeals concluded that “t he borrowers are bound [by] the terms of the forbearance agreem ent, including the clause consen ting to personal jurisdiction by the circuit court.” Id. at 10. While the Maryland Court of Sp ecial Appeals’s decision was pend ing, Defendants’ filed a motion to stay these proceedings, which was granted. See Mot. to Stay, ECF No. 36; Minute Order (Aug. 23, 2017). Now that the Court of Special Appeals h as affirmed the lower court’s ruling and the stay has been lifte d, Presidential has moved for summary judgment on eleven of Defendants’ twelve affirmative defenses, as well as its first r equest for relief , on the grounds that these defenses and the request are precluded by the Maryland st ate court judgment. See Pl.’s Renewed Mot. Partial Summ. J. ( “Pl.’s Mot.”), ECF No. 48. It h as also moved to strike Defendants’ demand for a jury tri al in its Answer, arguing thatDefendants voluntarily waived that right in the Forbearance Agreement. See Pl.’s Mot. Strike, ECF N o. 47. Defendants argue in6 response that the Maryland court judgment has no preclusive eff ect on its affirmative defenses or its demand for a jury trial becau se neither Defendants’ argumen ts in favor of its jury demand nor any of its affirmative defenses “rest on the nexus of unconscio nability and ‘confessed judgment.’” Defs.’ Mem. Opp’n Pl. ’s Renewed Mot. Partial Summ. J. (“Defs.’ Opp’n Summ. J.”) at 2, ECF No. 50. Presidential’ s motions are now ripe for decision.

III. MOTION FOR PARTIAL SUMMARY JUDGMENT Presidential now seek s to avail itself of any preclusive effect its success in obtaining the confessed judgment in Maryland might have on this case. As such , it has filed a motion for summary judgment on eleven of Defe ndants’ twelve affirmative de fenses—all but breach of contract—as well as Defendants’ request that this Court void th e entire Forbearance Agreement, on the theory that Defendants mi ssed their chance to proffer th ese defenses and this request when they did not raise them in Maryla nd. For the reasons set forth below, the Court grants Presidential’s motion for partial summary judgment. A. Legal Standard Federal Rule of Civil Procedure 56 provides that a court must g rant summary judgment when “the movant shows that the re is no genuine dispute as to a ny material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56 (a). “Material” facts are those capable of affecting the substant ive outcome of the litigation, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986), and a dispute regarding those facts i s “genuine” if there is enough evidence on the record for a rea sonable jury to find for the no n-movant, Scott v. Harris , 550 U.S. 372, 380 (2007). On summary judgment, the movant b ears the initia l burden of ide ntifying portions of the record that demonstrate the absence of any genuine issue of mat erial fact. See Fed. R. Civ. P.7 56(c)(1); Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). In respons e, the non-movant must point to specific facts in the r ecord that reveal a genuine iss ue that is suitable for trial. See Fed. R. Civ. P. 56(c)(1); Celotex , 477 U.S. at 324. The purported di spute may not be based on me re allegations—rather, the non-movant must present affirmative evi dence demonstrating that there is indeed a genuine dispute. Laningham v. U.S. Navy , 813 F.2d 1236, 1241 (D.C. Cir. 1987). However, all underlying facts and inferences must be analyzed i n the light most favorable to the

non-movant. See Liberty Lobby , 477 U.S. at 255. B. Analysis Upon the Maryland Court of Special Appeals’s affirmance of the Circuit Court’s denial of Defendants’ motion to vacate the confessed judgment, Preside ntial moved for partial summary judgment on eleven of Defendants’ twelve affirmative defenses, as well as their first request for relief—that the Court “[f]ind the Forbearance Agreement . . . unconscionable and void ab
initio .” Pl.’s Mem. P. & A. Supp. Pl.’s R enewed Mot. Partial Summ. J. (“Pl.’s Mem.”) at 1, ECF No. 48-1. Presidential argues that“Defendants’ efforts to chal lenge the enforceability of the forbearance agreement in this C ourt ignores the fact that the M ontgomery County Circuit Court (the “Circuit Court”) has alre ady held that the forbearance agr eement is enforceable,” thereby precluding Defendants from raisi ng defenses and requests stemmi ng from that contention that could have been raised in the prior proceedings. Id. at 1–2. Defendants respond that “Plaintiff’s reasoning is flawed because it ignor es the extent to which Defe ndants’ affirmative defenses stand independent of and do not rely on the question of unconscionabi lity as a result of the ‘confessed judgment.’” Defs.’ Opp’n Summ . J. at 1. However, Defendants do concede that “should an affirmative defense rest on the nexus of unconscionability and [the] ‘confessed judgment,’ that defens[]e should be stricken.” Id. at 2. As explained below, the Court finds that Defendants’ fir st8 request for relief—that the F orbearance Agreement be found unco nscionable and void— is precluded by res judicata. Add itionally, the Court finds that a ll of Defendants’ challenged affirmative defenses must also b e stricken because they are pre cluded by the Maryland judgment. “The plea of [res judicata] app lies, except in special cases, not only to the points upon which the court was required by th e parties to form an opinion, and pronounce a judgment, but to every point which properly belonged to the subject of litigatio n, and which the parties, exercising reasonable diligence, might have brought forward at the time.” Cromwell v. County of Sac , 94 U.S. 351, 358 (1876). “Res judicata literally means ‘a thing ad judicated,’ and gene rally indicates ‘an affirmative defense barring the same parties from litigatin g a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been—but was not—rai sed in the first suit.’” 1 Lizzi v. Wash. Metro. Area Transit Auth. , 862 A.2d 1017, 1022 (Md. 2004) (quoting Bl ack’s Law Dictionar y 1336–37 (8th ed. 2004)); see also Alvey v. Alvey , 171 A.2d 92, 94 (Md. 1961) (“The doctrin e of res judicata is that a judgment between the same parties and their privies is a fina l bar to any othe r suit upon the same cause of action, and is c onclusive, not only as to all mat ters that have been decided in the original suit, but as to all matters which with propriety could have been litigated in the first suit.”); Mackall v. Zayre Corp. , 443 A.2d 98, 102 (Md. 1982) (stating that “if a proceeding between parties involves the same cause of action as a previous proceeding between the same

1 “It is now settled that a fede ral court must give to a state-c ourt judgment the same preclusive effect as would be gi ven that judgment under the lawof the State in which the judgment was rendered.” Migra v. Warren City Sch. Dist. Bd. of Educ. , 465 U.S. 75, 81 (1984). As such, federal courts must accept the res judicata rules “cho sen by the State from which the judgment is taken.” Marrese v. Am. Acad. Orthopaedic Surgeons , 470 U.S. 373, 380 (1985) (internal quotation marks and cit ation omitted). Because in thi s case the Court is evaluating the preclusive effect of a Maryland s tate court judgment, it analyz es the preclusive effect of the judgment using Maryland law.9 parties, the principle of res jud icata applies and all matters actually litigated or that could have been litigated are conclusive in the subsequent proceeding”). T he doctrine “avoids the expense and vexation attending multiple lawsuits, conserves the judicia l resources, and fosters reliance on judicial action by minimizing th e possibilities of inconsistentdecisions.” Murray Int’l Freight Corp. v. Graham , 555 A.2d 502, 503–04 (Md. 1989) (quoting Montana v. United States , 440 U.S. 147, 153–54 (1979)). Whether res judicata app lies to a particular action is a question of law.
See Davidson v. Seneca Crossing Se ction II Homeowner’s Ass’n, Inc. , 979 A.2d 260, 279 (Md. Ct. Spec. App. 2009). “Under Maryland law, the element s of res judicata, or claim pre clusion, are: (1 ) that the parties in the present litigati on are the same or in privity wi th the parties to the e arlier dispute; (2) that the claim presented in the current action i s identical to the one determined in the prior adjudication; and, (3) that ther e has been a final judgment on the merits.” Anne Arundel Cty. Bd. of Educ. v. Norville , 887 A.2d 1029, 1037–38 (Md. 2005). Here, the parties are clearly the same: Presidential Bank, Mr. Green, and six of his LLCs.
See Compl. at 1; Md. Op. at 1. A dditionally, under Maryland law, “ a judgment by confession is ‘entitled to the same faith and c redit, as any other judgment’” for res judicata purposes. Schlossberg v. Citizens Bank , 672 A.2d 625, 627 (Md. 1996) (quoting Keiner v. Commerce Trust
Co. , 141 A. 121, 122 (Md. 1927)); see also Howard Oaks, Inc. v. Md. Nat’l Bank , 810 F. Supp. 674, 676 (D. Md. 1993) (“Confessed judgments are judgments on the merits, entitled to preclusive effect under Ma ryland law . . . .” (citing Boyce v. Plitt , 335 A.2d 101, 103 (Md. 1975)). However, the question of whe ther Defendants have presen ted the same claims or10 defenses 2 in this case as were at issue, or could have been at issue, inthe confessed judgment case requires further exploration. “To determine whether two suits i nvolve the same ‘cause of acti on,’ for res judicata purposes, Maryland courts have tra ditionally applied the so-cal led ‘same evidence’ test.” Snell v. Mayor of Havre de Grace , 837 F.2d 173 (4th Cir. 1988) (citing MPC, Inc. v. Kenny , 367 A.2d 486, 489 (Md. 1977)). “Under this tes t, as stated, the second s uit is barred if the evidence necessary to support a verdict fo r the plaintiff in it would have been sufficient to sustain a judgment for him in the first suit.” Id. (citing Klein v. Whitehead , 389 A.2d 374, 384 (Md. Ct. Spec. App. 1978)). Additionally, “if the two claims or theories are based upon the same set of facts and one would expect them to be tried together ordinarily , then a party must bring them simultaneously. Legal theorie s may not be divided and presented in piecemeal fas hion in order to

2 While more commonly used as an affirmative defense, res judicata may be used offensively when appropriate. See, e.g. , Brown v. Felsen , 442 U.S. 127, 131 (1979) (“Res judicata prevents litigation of all grounds for, or defenses to , recovery that were previously available to the parties, regardl ess of whether they were asser ted or determined in the prior proceedings.”); Nasalok Coating Corp. v. Nylok Corp. , 522 F.3d 1320, 1324, 1328 (Fed. Cir. 2008) (holding that petition for cancelation of trademark that had been awarded through default judgment was precluded because t he petition’s effect was to col laterally attack a judgment in an infringement action); In re Garcia , 313 B.R. 307, 312 (B.A.P. 9th Cir . 2004) (holding that claim preclusion applied t o a default judgment, and that, under the d octrine of merger, debtors were barred from asserting defenses t hat should have been raised in the prior proceeding); Boston Post Road Med. Imaging, P.C. v. Allstate Ins. Co. , 221 F.R.D. 410, 412 (S.D.N.Y. 2004) (barring defendant’s petition for cancela tion of trademark that had been awarded through default judgment as precluded because the petition’s effect was to coll aterally attack a judgment in an infringement action). However, us e of offensive res judicata is rare, and Maryland courts have yet to explicitly find for a party attempting to use it offensi vely. See Suryan v. CSE Mortg, L.L.C. , No. 0452, 2017 WL 3667657, at *15 (M d. Ct. Spec. App. Aug. 25 , 2017); but see Norville , 887 A.2d at 1038 (citing approvingly to GLF Constr. Corp. v. LAN/STV , 414 F.3d 553, 555 n.2 (5th Cir. 2005) (“claims and de fenses” are the same for res judicata purposes when they arise from a “common nucleus of operative facts”)). Defendants have not challenged Presidential’s offensive use of res judicata, and as explained below, the inconsistency that could result from not precluding these a ffirmative defenses warrants the use of res judicata in this scenario.11 advance them in separate actions.” Norville , 887 A.2d at 1038 (citing Comm’r Internal Revenue
v. Sunnen , 333 U.S. 591, 597 (1948)); see also Kent Cty. Bd. of Educ. v. Bilbrough , 525 A.2d 232, 238 (1987) (citing Restatement (Second) of Judgments § 24 (“What factual grouping constitutes a ‘transaction’, a nd what groupings constitute a ‘s eries’, are to be determined pragmatically, giving weight to suc h considerations as whether the facts are related in time, space, origin, or motivation, wheth er they form a convenient tr ial unit, and whether their treatment as a unit conforms to the parties’ expectations or bu siness understanding or usage.”)). This proposition derives from “the sound and obvious principle of judicial policy that a losing litigant deserves no rematch after a defeat fairly suffered[] i n adversarial proceedings.” Astoria Fed. Sav. & Loan Ass’n v. Solimino , 501 U.S. 104, 107 (1991); accord Colandrea v. Wilde Lake Comty. Ass’n , 761 A.2d 899, 909 (Md. 2000). “When a prior court has entered a final judgment as to the mat ter sought to be litigated in a second court, the claim analys is is usually uncomplicated . . . . It is when a court has not ruled upon a matter directly that the analysis becomes more complex, ‘for then the second court must determine whether the matter currently before it was fairly inc luded within the claim or action that was before the earlier cour t and could have been resolved in that court.’” Norville , 887 A.2d at 1038 (quoting FWB Bank v. Richman , 731 A.2d 916, 927 (Md. 1999)). The Court is faced with the latter predicament here. Presidential seeks t o use a confessed judgm ent in Maryland court, which Defendants had ample opportunity to challenge, t o bar certain affirmative defe nses and remedies that it argues could have been litigated in Mar yland. As explained above, the confessed judgment ordered Defendants to pay Presidential th e principal on the loans it re ceived from the bank, as well as interest, late fees, inspection a nd repair costs, escrow fees, and attorneys’ fees. See Confessed12 Judgment at 2, ECF No. 48-3. The confessed judgment did not, onits face, apply to any other agreement in the contract. Maryland courts have applied the transaction test to contract d isputes on many occasions. For example, in Patel v. HealthPlus, Inc. , the Maryland Court of Sp ecial Appeals found that a plaintiff doctor’s fee disputes w ith a Health Maintenance Organ ization with which he had contracted were precluded by an e arlier suit with fee claims ba sed in the same contract because “ample means existed for all of the fee disputes to have been t ried as a single case.” 684 A.2d 904, 918 (Md. Ct. Spec. App. 1996). Because the fee claims in the first lawsuit were of the same nature and based in the same contract as the fee claims in the second suit, and because the fee claims raised in the second su it could have easily been brought during the earlie r suit, and all these claims together would undoubtedly have constituted a “con venient trial unit,” the plaintiff doctor could not be allowed to pur sue this second set of identi cal claims. Id. Conversely, in Shum v. Gaudreau , the Maryland Court of Appeals he ld that a landlord’s prior su mmary ejectment action seeking repossession of aleased property and unpaid ren t did not preclude a second suit seeking damages for the cost of r epairing the property after th e ejectment. 562 A.2d 707, 710, 716 (Md. 1989). Even though the basi s of both suits was a singl e lease, and therefore, the cases’ “facts [were] related in time , space, [and] origin,” and even though it would have been convenient to try both cases t ogether, the Court found that, be cause the landlord’s claim for contract damages could not have been properly joined procedural ly with his summary ejectment case, the first suit did not precl ude the landlord from bringin g the second. Id. Under the Forbearance Agreement , the confessed judgment clause applied only to “the amount of the unpaid principle balance of the notes together wi th any accrued and unpaid interest, late charges and atto rneys’ fees and costs incurred b y the lender, together with all other13 costs and expenses incurred or accrued and unpaid under the agr eement.” Forbearance Agreement at 9. The lockbox agreeme nt at issue in this case was provided for in a separate part of the contract, and was not enf orceable through a confessed ju dgment. However, the lockbox agreement was necessarily relat ed to the confessed judgment pro vision, because the money placed in the operating accounts pursuant to the lockbox agreem ent were designated to be used to pay off Defendants’ debt to Presidential. See Forbearance Agreement at 5–6. Therefore, the Court must determine whether any of the affirmative defenses De fendants have raised seeking the invalidation of the entire Fo rbearance Agreement, or, in th e alternative, the lockbox agreement, could have been raise d and properly li tigated in the prior case challenging the confessed judgment. “A confession of judgment clause in a debt instrument is a devi ce designed to facilitate collection of a debt. It is a pr ovision by which debtors agree to the entry of judgment against them without the benefit of a trial in the event of default on the debt instrument.” Schlossberg , 672 A.2d at 627 (citing Paul V. Nieme yer & Linda M. Schuett, Ma ryland Rules Commentary at 464 (2d ed. 1992)). “Because the wid espread practice of includi ng a provision authorizing a confessed judgment in promissor y notes lends itself to fraud an d abuse, however, [the Maryland Court of Appeals] has made cle ar that judgments by confession a re to be freely stricken out on motion to let in defenses.” Id. (internal citation and quotation marks omitted). If a defendant moves to “open, m odify or vacate” a confessed ju dgment, the circuit court must determine whether there is a “substantial an d sufficient b asis for an actual controversy as to the merits of the action.” Md. Rule 2–611(d), (e). This means that the court must determine whether the defendant has a “pot entially meritorious defense” t o the confessed judgment. Schlossberg , 672 A.2d at 627–28. “The court do es not, however, decide the merits of the14 controversy at this stage . . . . I f the court finds that a pri ma facie basis for a defense exists, the rule requires the court to order that the confessed judgment be opened, modified, or vacated so that the defendant can file a re sponsive pleading to the plaint iff’s complaint and the merits can be determined.” Id. at 628 (citing Maryland Rules C ommentary at 466 and Md. Rule 2 –611(d)); see also Nils, LLC v. Antezana , 912 A.2d 45 (Md. Ct. Spec. App. 2006). “Maryland debtors, to open a confessed judgment ‘are merely r equired to meet a standard th at is a minimal obstacle.”’ Shafer
Bros. v. Kite , 406 A.2d 673, 677 (Md. Ct. Spec. App. 1979) (quoting Billingsley v. Lincoln Nat’l Bank , 320 A.2d 34, 38 (Md. 1974)). Usually, “it is not until after the judgment has in fact been v acated or opened that any other pleading, such as a counter claim, can properly be dockete d in the confessed judgment case.” Boyce v. Plitt , 335 A.2d 101, 104 (Md. 1975). However , Maryland courts do not always follow this sequential rule. See, e.g. , Albert W. Sisk & Son, Inc. v. Friendship Packers, Inc. , 604 A.2d 69 (Md. 1992) (circuit court al lowed defendants to file a counterclaim before vacating a judgment and accepted answer afterwards). A meritorious defense to a confessed judgment challenges either “(1) the execu tion of the promissory note its elf or (2) the amount of debt due on the note.” Nils, LLC v. Antezana , 912 A.2d 45, 52 (Md. Ct. Spec. App. 2005) . Possible defenses to a confessed judgment include: (1) the note was executed unde r duress; (2) the terms of the agreement are unconscionable; and (3) the contract is one of adhesion. See id. at 52–53. “If, by contrast, it is alleged that th e manifold misdeeds of the holde r created financial pressure on the obligor to make what would otherw ise qualify as a voluntary pro missory note, that is not what Rule 2–611(c) contemplates as a ‘defense to the claim.’ Few per sons ever gratu itously execute promissory notes as mere exercises in generosity. They generall y do so out of financial exigency,15 but if the act of executing the promissory note is a voluntary one, Rule 2–611(c) does not require us to look behind it.” Id. at 52. As explained above, Defendants mo ved to vacate the confessed ju dgment primarily on the ground that the Circuit C ourt in Montgomery County lacked p ersonal jurisdiction over them.
See Md. Op. at 1. They also argued th at confessed judgments are dis favored in Maryland, see id. at 3, and that the confessed judgment language in the Forbearan ce Agreement was therefore unconscionable. See Defs.’ Opp’n Summ. J. at 1. The C ircuit Court held that it in fact had personal jurisdiction over Defenda nts, and denied their motion to vacate. Md. Op. at 4. It also explained that it “searched i n vain for the allegation of a pot entially meritorious defense” to the confessed judgment, “[a]nd there was some language about . . . a potentially meritorious defense, but [Defendants’ briefing] didn’t say what it was.” Id. It continued that it “never heard, never read in any of the documents tha t were submitted [] what this m eritorious defense to the note might be.” Id. Defendants appealed the denial of the motion to vacate on juris dictional grounds only, and the Court of Special Appeals affirmed the Circuit Court’s f indings. See id. at 6–7. In particular, the Court of Special Appeals explained that “absentfraud, duress, or mutual mistake, ‘a party who signs a contract i s presumed to have read and unde rstood its terms and . . . the party will be bound by them when the document is executed.’” Md. Op. at 8 (quoting Dashiell v. Meeks , 913 A.2d 10, 20 (Md. 2006)). Because the court did not believ e that any of these exceptions applied in this case , it “conclude[d] that the borro wers are bound [by] the terms of the forbearance agreement, including the clause consenting to perso nal jurisdicti on by the circuit court.” Id. at 10.16 To resolve Presidential’s moti on for summary judgment, this Court must determine whether the Court of Special Appeals’s ruling that the terms of the Forbearance Agreement, including the confessed judgment clause, are enforceable also a pplies to the Forbearance Agreement’s lockbox provision. Presi dential argues that this de cision leaving the confessed judgment in place precludes Defendants from raising any of the affirmative defenses they could have raised to challenge the conf essed judgment, which the Mary land courts have already deemed lawful and enforceable. Defendants’ primary counterargum ent is that the majority of their affirmative defenses do not “rely on the question of unco nscionability as a result of the “confessed judgment.” Defs.’ O pp’n Summ. J. at 1. They claim th at their “position is supported by a plain reading of the affirma tive defenses as well as docum ents that have been provided through discovery.” Id. at 1–2. They further argue that t heir defenses are not preclud ed by the confessed judgment because Pres idential’s actio ns “went beyond the realm of the unconscionable and extended into the stratosphere of banker liability.” Id. at 3. However, as explained above, res judicata applies not only to c laims and defenses that were raised in a prior case, but all of those claims and defens es that could have been raised as well. See Cromwell v. County of Sac , 94 U.S. 351, 358 (1876) (“The pl ea of [res judicata] applies, except in special cases, not only to the points upon w hich the court was required by the parties to form an opinion, and pronounce a judgment, but to ev ery point which properly belonged to the subject of litigation, and which the parties, e xercising reasonable diligence, might have brought forward at the time.”). Therefore, this Court must decide whether each of the affirmative defenses raised c ould have been raised in the prior Maryland proceedings. Defendants’ first affirmative defense is duress. See Answer at 1–2. Defendants claim that when they entered the Forbearan ce Agreement, they had received “threats of harm” from17 Presidential “made to compel [the m] to immediately sign the for bearance and lockbox agreements against their will and judgment.” Defs.’ Genuine Iss ues of Material Facts in Dispute (“Defs.’ SMF”) at 2, ECF No. 50. The y argue that for that reaso n “everything flowing from the Forbearance Agreement should be de emed null as Borrowers are en titled to resci nd or set aside the forbearance and lockbox agreements, rendering them void and voidable in equity.” Id. This request parrots Defendants’ fir st claim for relief in their counterclaim, on which Presidential has also moved for summary judgment. See Answer at 47. Defendants’ arguments fail for two reasons. First, the Court ca nnot void the entire Forbearance Agreement without nu llifying the confessed judgment in Maryland, which was derived from the Forbearance Ag reement. Under Maryland law, if the original defendant’s permissive counterclaim would “ nullify” the prior judgment or i mpair the rights the prior judgment created, then claim pr eclusion bars the subsequent rai sing of the counterclaim. See,

e.g. , Mostofi v. Midland Funding, LLC , 117 A.3d 639, 644–45 (Md. Ct. Spec. App. 2015) (“When a party is sued, and that party could bring a permissive counterclaim, he or she is not required to ‘raise or waive’ tha t counterclaim unless successfu l prosecution of it would nullify the other party’s claim.”); Rowland , 577 A.2d at 57 (suggesting that claim preclusion would apply if ruling in the second cas e would nullify the initial ju dgment or would impair rights established in the i nitial judgment). As Maryland courts have y et to explicitly recognize offensive res judicata, this pr inciple has not ye t been applied to affirmative defenses that, should they be proven, would nullify a prior court judgment. However, because the effect of a finding of duress in this case would have the same effect of nullifying th e Maryland Court of Special Appeals’s implicit find ing that the Forbearance Agreement was n ot entered into under duress as any counterclaim challenging the va lidity of the Forbearance Ag reement, the same principal that18 Maryland courts have applied to nullifying counterclaims should be applied to nullifying affirmative defenses as well. I f Defendants had wanted to chall enge the confessed judgment because they believed they had entered into the Forbearance Agr eement under duress, they had ample opportunity to move to vacate the confessed judgment on that basis. And, if their motion based on duress was successful, t hey would have had the opportunity to fully litigate the question of whether the confessed judgmen t provision, and even the entir e Forbearance Agreement, 3
should be voided on that basis. F or this reason, the Court find s that Defendants’ first affirmative defense, duress, is barred by res judicata. Defendants’ second affirmative defense, undue influence, simila rly could have been raised as a defense once the confessed judgment had been vacate d and the case had proceeded to trial, though undue influence w ould not have on its own served as a ground to vacate the confessed judgment. See, e.g. , Nils, LCC v. Antezana , 912 A.2d 45, 52 (Md. Ct. Spec. App. 2006) (“If, by contrast, it is alleg ed that the manifold misdee ds of the holder created financial pressure on the obligor to make w hat would otherwise qualify as a voluntary promissory note, that is not what Rule 2–611(c) con templates as a ‘defense to th e claim.’ Few persons ever

3 Defendants have not raised the argument that even though the M aryland courts found that no meritorious defense exis ted as to the confessed judgmen t, other portions of the forbearance agreement were procured through different impermiss ible means, and therefore, while the confessed judgment clause was not procured under dure ss, other portions of the contract were. Indeed, Defendants’ eleventh affirmative defense , contract of adhesion, was asserted on the grounds that “Presi dential gave borrowers a sta ndard form, take-it -or-leave[-it] forbearance and lockbox contract of adhesion, where the terms a nd conditions of the contracts were set by Presidential, a nd borrowers had little or no abilit y to negotiate more favorable terms.” Answer at 8. These allega tions imply that the entire co ntract was procured through one process, and no one clause was treated differently than any oth er. Of course, defendants are allowed to raise conflicting de fenses when responding to a comp laint. See Fed. R. Civ. P. 8(d)(3) (“A party may state as many separate claims or defenses as it h as, regardless of consistency.”) However, without any allegations t o the contrary, the Court ass umes that the forbearance agreement was considered and signed as a single unit.19 gratuitously execute promissor y notes as mere exercises in gene rosity. They generally do so out of financial exigency, but if the act of executing the promisso ry note is a voluntary one, Rule 2– 611(c) does not require us to l ook behind it.”) Because Defenda nts have not alleged that Presidential pursued a separate attempt to unduly influence Def endants into signing the lockbox agreement as opposed to the confessed judgment portion of the F orbearance Agreement, a finding of undue influence in this case would directly conflict with the finding of the Maryland Circuit Court when it entered the confessed judgment. Therefore , Defendants are precluded from raising this defense. The Court next turns to the de fense of unclean hands. Under Maryland law, “[i]t is only when the plaintiff’s improper conduct is the source, or part of the source, of his equitable claim, that he is to be barred because of this conduct. What is materi al is not that the plaintiff’s hands are dirty, but that he dirties th em in acquiring the right he n ow asserts.” Adams v. Manown , 615 A.2d 611, 617 (Md. 1992) (quoting D . Dobbs, Remedies § 2.4, at 46 (1973)). Defendants allege that “Presidential is not entitled to obtain any equitable reme dies because Presidential is acting unethically and has acted in ba d faith by lying and concealing the fact that Borrowers had sufficient funds controlled by Pre sidential to timely pay mortg ages and insurance.” Answer at 3. In effect, Defendants are accusi ng Presidential of lying and causing them to default on the Forbearance Agreement, leading to the confessed judgment. As su ch, this defense stems from Defendants’ allegedly fraudulent conduct after the signing of the Forbearance Agreement, rather than before. However, it is cl ear that the “unclean” conduct at issue in Defendants’ Answer affects both the confessed judgm ent clause and the lockbox agre ement. Defendants claim that Presidential’s fraudulent behavi or caused it to default on its loan for a third time on June 6, 2016.
See Answer at 3; see also Compl. at 7–9 (describing the tim eline for Defendants’ default s and20 timeline of its breach of the l ockbox agreement) . Presidential also identified June 6, 2016, as the date that Defendants stoppe d depositing funds into the lockbox operating account. See Compl. at 9. It is clear both from Presid ential’s timeline and the fact that Defendants do not distinguish between the “unclean” conduct as it relates to the confessed ju dgment provision and the lockbox agreement, that the basis for Defendants’ unclean hands defense is the same basis for the unclean hands defense it could have raised in Maryland. Because the Mar yland courts, by refusing to vacate the confessed judgment, have implicitly found that no “unclean” conduct caused Defendants’ to default on their l oans, thereby entitling Presid ential to the confessed judgment, the Court is precluded from a llowing the defense to go forward here. Next the Court turns to Defenda nts’ fourth, sixth, and seventh affirmative defenses— misrepresentation, fraudulent m isrepresentation, and negligent misrepresentation, respectively.
See Answer at 3–5. These defenses are based on Defendants’ asserti on that Presidential made the false material statement to Borrowers that if Borrowers signed the forbearance agreement that Presidential wo uld not foreclose on borrowers’ properties and would help borrowers manage their properties and insure that borrowers’ mortgages, insurance and other property bus iness expenses were paid on tim e. These material statements acted to induce borrowers to sign the forbearance and lockbox agreements. Answer at 3. Defendants assert that these defenses are not barr ed by the Maryland judgment because these defenses “do[] not speak to the unconscionabilityof the agreement based on the ‘confessed judgment’ language.” D efs.’ SMF at 11. However, as e xplained above, Defendants had the opportunity, when challe nging the Maryland confessed ju dgment, to raise additional defenses challenging the valid ity of the confessed judgment or the entire Forbearance Agreement. Maryland courts have recognized misrepresentation as a grounds of vacating a confessed judgment. See e.g. , Cardwell-Fisher Fixture Co. v. Commerce Trust Co. , 141 A. 121,21 125 (Md. 1927) (finding that the t rial court below should have vacated a confessed judgment because the defendant pleaded su fficient facts demonstrating th at she signed a contract due to plaintiff’s fraudulent misrepresentations); see also Alger Petroleum, Inc. v. Spedalere , 573 A.2d 423, 432 (Md. Ct. Spec. App. 1990) (hol ding that trial court ab used its discretion by not vacating a confessed judgment when the de fendant had presented “satisfac tory proof” that it had signed a contract due to fraudulent misrep resentation). As explained abo ve, Defendants have provided no explanation as to how they were induced to sign the lockbox portion of the Forbearance Agreement through misrepresentation, when they have already bee n found, implicitly, by the Maryland courts, to have not bee n subjected to the same sort of misrepresentation when they signed the confessed judgment portion of the agreement. Because these defenses would have served as defenses against the e ntire Forbearance Agreement if they had been raised before the Maryland courts, Defendants are precluded from raising them now

. Defendants’ fifth affirmative de fense is breach of fiduciary du ty. See Answer at 4. Defendants claim that “[t]hrough the execution of the forbearan ce agreement and Presidential taking excessive control of Borro wers’ business, business affai rs and business income, Presidential created atrust between itself and Defendants.” An swer at 4. Defendants believe that due to this relationship of trust , “it was important for Presid ential as a fiduciary to disclose all facts which could be considered m aterial even if not expressly asked about,” including “that the agreement had confession judgmen t provisions, waiver of borrowe r’s rights provisions and gave Presidential total c ontrol of borrowers’ bus iness, business aff airs and business income.” Id. Additionally, according to Defendants, this relationship “argua bly created a potential and/or actual conflict of interes t with the borrowers.” Id.22 This affirmative defense seems to more squarely counter the val idity of the lockbox agreement than the validity of the confessed judgment. It was through the lockbox agreement that Presidential created the purported fiduciary relationship with Defendants, by gaining control over Defendants’ rents to use t o pay off its debt. However, thi s defense could also have been used to challenge the confe ssed judgment once it had been vacat ed. After all, it was this alleged breach of fiduciary relationshi p that Defendants claim caused i t to default on the Forbearance Agreement, allowing Presidential to procure the confessed judgm ent against them. Because this defense could have been raised duri ng the Maryland litigation, Defendants are precluded from asserting here. Defendants’ eighth defense is unc onscionable dealing and conduc t. Answer at 6. Defendants argue that “Presidential’s unconscionable contract is unenforceable because no reasonable or informed person w ould otherwise agree to it.” Id. (emphasis in original). It further argues that “Presiden tial, the perpetrator of the conduct, shou ld not be allowed to benefit, because the consideration offered is lacking, or is so obviousl y inadequate, that to enforce the contract would be unfair to the borrowers.” Id. Defendants relate this de fense to their eleventh affirmative defense, contrac t of adhesion, by exp laining that “ Presidential offered borrowers a standardized forbearance contra ct of adhesion for the extensionof mortgage credit under threat of foreclosure and on a ‘take it or leave it’ basis, without gi ving borrowers realis tic opportunities to negotiate terms that woul d benefit their interests.” Id. ; see also id. at 8. Defendants also concede that this defense was partially litigated in Maryland. See Defs.’ Opp’n Summ. J. at 15 (“This Eighth Affirmative Defens e is predicated upon Defendants ’ rights to seek r elief in the courts and thus relied upon the unc onscionability of the confes sed judgment language.”); see also id. at 2 (“Defendants agree that s hould an affirmative defense res t on the nexus of23 unconscionability and ‘confessed jud gment,’ that defens[]e shou ld be stricken.”). However, because courts may not treat motions for summary judgment as “c onceded” for want of opposition, the Court evaluates wh ether Defendants’ eighth affi rmative defense is actually barred by res judicata. See Winston & Strawn, LLP v. McLean , 843 F.3d 503, 508 (D.C. Cir. 2016). “A contract of adhesion has bee n defined as one ‘that is drafte d unilaterally by the dominant party and then presente d on a ‘take-it-or-leave-it’ ba sis to the weaker party who has no real opportunity to barga in about its terms.’” Meyer v. State Farm Fire & Cas. Co. , 582 A.2d 275, 278 (Md. Ct. Spec. App. 1990) (quoting Restatement (Second ) of Conflict of Laws § 187, Comment b). However, “[t]he fact that a contract is one of adhe sion does not mean that either it or any of its terms are invalid or unenforceable.” Id. Courts “will refuse to enforce terms that it finds unconscionable and will construe ambiguities against the draftsman; but it will not simply excise or ignore terms merely because, in the given case, they may operate to the perceived detriment of the weaker party.” Id. It is clear that these defens es could appropriately have been r aised during the Maryland proceedings. The defense that a contract was a contract of adhe sion can be raised to vacate a confessed judgment in Maryland, as can unconscionability. See Md.-Nat’l Capital Park & Planning Comm’n v. Wash. Nat’l Arena , 386 A.2d 1216, 1233 (Md. Ct. Spec. App.) (citing D. H. Overmeyer Co. v. Frick Co. , 405 U.S. 174, 185 (1972)). If the confessed judgment clause s hould not have been enforced because the contract was unconscionable or a contract of adhesion, Defendants could have raised and argued that possibility when i t asked the Circuit Court judge to vacate the confessed judgment . And because whether a contract i s a contract of a dhesion applies to the entire contract, the fact that the Maryland court did no t find this contract to be one precludes this Court from findi ng the Forbearance Agreement to be one now.24 Defendants also claim that the forbearance and lockbox agreemen ts should be voided due their impracticability or impossibility. See Answer at 7. In particular , Defendants claim that because Presidential would not disburse income from the operati ng accounts to make “ordinary and necessary property repairs,” it became impossible for Defen dants to maintain their properties and continue operating their busines ses. Defs.’ Opp’n Summ. J. at 16. Additionally, they argue that because Presiden tial did not pay Defenda nts’ loans, as the y were supposed to, with the money in the operating accounts, they caused Defendants to default on their loans. See id. Defendants’ contentions regarding P residential’s contribution t o their default, based on the structure of the Forbearance Ag reement, could have been raised in the Maryland courts to challenge Defendants’ liability for the confessed judgment. If the contract, including the lockbox agreement, was impossible to c omply with, leading to Defendants ’ default, the Maryland court could have voided the contract if Defendants had also successfu lly moved to vacate the confessed judgment. Because this defense was an appropriate means to fight the confessed judgment, and the rest of the For bearance Agreement, in Marylan d, Defendants are precluded from raising it here. Defendants’ final challenged affi rmative defense is anticipator y breach. Defendants claim that after they had entered into the Forbearance Agreement withPresidential, “Presidential told borrowers that it d[id] not int end to live up to its obligation s under the contract” by timely paying Defendants’ mortgage and insuran ce, thereby repudiating the con tract. Answer at 8. An anticipatory breach of contract is “when in anticipation of the time of performance one definitely and specifically refuses to do something which he is obliged to do, so that it amounts to a refusal to go on with the contract,” in whic h case “the other party may , at his election, treat that contract as abandoned, and act accordingly.” Weiss v. Sheet Meta l Fabricators, Inc. , 110 A.2d 671, 67525 (Md. 1955). It is clear from Defe ndants’ recounting of events l eading up to the deterioration of its contractual relationship with Presidential that this defens e could have been raised in both the Maryland case for the confesse d judgment and this case for conv ersion in violation of the lockbox agreement. If Presidential had definitively told Defend ants that it would not be complying with its obligations und er the Forbearance Agreement, then that statement could have been used as a challenge to its d efault that precipitated the c onfessed judgment, as well as its decision to stop depositing its r ents into the operating accounts pursuant to the lockbox agreement. Because this defense was applicable to both the Mary land and the D.C. ligation, it is barred by res judicata.

IV. MOTION TO STRIKE JURY DEMAND Presidential has also moved to s trike the jury demand included in Defendants’ Affirmative Defenses, Answers , and Counterclaims, arguing that because the Forbearance Agreement, which included a jury waiver clause, has been deemed enforceable in the Maryland courts, a challenge to the jury w aiver clause is barred by res judicata. See Mem. P. & A. Supp. Pl.’s Renewed Mot. Strike Jury D emand (“Mot. St rike”) at 5–6, E CF No. 47-1. It also points to the numerous other agreements Def endants entered into with Pres idential that included jury waiver clauses to demonstrate th at Defendants’ agreement to wai ve their right to a jury trial in the Forbearance Agreement was knowing and voluntary. Id. Defendants respond that because Presidential’s alleged misconduct when Defendants entered into the Forbearance Agreement was so egregious, Defendants did not e nter into the forbearance agr eement voluntarily, and therefore their jury waiver should be i nvalidated. Defs.’ Opp’n Mot. Stri ke at 3, ECF No. 49. They also argue that because the Forbearance Agreement “remain[s] offensi ve to public policy and will be shown to be unfair in a trial on th e merits,” the jury waiver c lause should not be upheld. Id. at 4.26 For the reasons explained below, the Court finds that Defendant s knowingly and voluntarily waived their right to a trial by jury, and therefore, the Courtgrants Presiden tial’s Motion to Strike. A. Legal Standard In diversity as well as other ac tions, “[t]he right to a jury trial in the federal courts is to be determined as a matter of federal law[.]” Simler v. Conner , 372 U.S. 221, 222 (1963). “Parties, at least in situations where summa ry procedure is clearly to be de sired, may in advance contract to waive a trial by jury.” Rodenbur v. Kaufmann , 320 F.2d 679, 684 (D.C. Cir. 1963). However, “[c]ourts will indulge every rea sonable presumption against wai ver of a jury trial.” Id. at 683. “Those cases in which the validity of a contractual waiver of j ury trial has been in issue have overwhelmingly applied the knowing and voluntary standard.” K.M.C. Co. v. Irving Trust Co. , 757 F.2d 762, 756 (6th Cir. 1985) (citations omitted). “[T]he S ixth Circuit has held that the party objecting to the jury waiver pr ovision has the burden of demons trating that its consent to the provision was not knowing and voluntar y,” while “courts in the Second, Fourth, and Tenth Circuit have held that the party seeking to enforce a jury waiv er provision has the burden of proof that consent to the p rovision was knowing and voluntary.” 92 A.L.R. Fed. 688 (last updated 2016) (originally publis hed in 1989). Courts considerin g whether a jury waiver was voluntarily entered into “cons ider, among other matters, how co nspicuous the waiver was within the document, the relative barg aining power of the parties, the business or professional experience of the party opposing the waiver, the parties’ abili ty to read and comprehend the consequences of waiver, and whe ther the contract, and in partic ular the waiver provision, was the subject of negotiation.” Fed. Trade Comm’n v. Capital City Mortg. Corp. , No. 98-237, 2001 WL27 36132732, at *2 (D.D.C. Mar. 14, 2012) (citing Leasing Serv. Corp. v. Crane , 804 F.2d 828, 833 (4th Cir. 1986)). While the D.C. Circuit has not a ddressed who bears the burden o f proof in challenging or sustaining contractual jury waive rs, courts in this District have applied the knowing and voluntary standard used in other Circuits. See, e.g. , Capital City Mortg. Corp. , 2001 WL 36132732, at *1. This Court will adoptthat standard as well, a nd, because courts should “indulge every reasonable presumption again st waiver of a jury trial,” Rodenbur , 320 F.2d at 683, will hold the movant to the burden of proving that the jury waiver w as knowingly and voluntarily entered into. B. Analysis As mentioned above, Presidential ha s put forth two major argume nts in support of its motion to strike. First, it ar gues that every ground on which D efendants’ could challenge the enforceability of the jury waiv er are barred by res judicata. S econd, it argues that Defendants’ long history of signing away their right to a jury trial demons trates that they ent ered into this jury waiver knowingly and voluntarily. While the question of whether the jury waiver was knowingly and voluntarily entered into is mo re complex than Presidential argues it is, Presidential is correct that Defendants’ demand for a j ury trial cannot be granted. While duress and fraud, which Defe ndants are now barred from ra ising due to res judicata, see supra Section IV.A, are possible gr ounds upon which courts may invali date contractual jury waivers, courts must take other factors, which would not have been properly raised in a challenge to the c onfessed judgment provision, into consideration as well. For example, examining the Forbearan ce Agreement, the Court notes that the jury waiver clause is printed in bolded text, and is pl aced next to one of the most i mportant clauses in the contract, the28 confessed judgment clause, whi ch itself is printed in bold with all capital letters. See Forbearance Agreement at 9. Additionally, th e jury waiver states in plain, easily understandabl e language that by signing the Forbearance Agreem ent, Defendants would be waivi ng their right to a trial by jury in any litigation arising out of the Forbearance Agreement. Id. Even if Defendants were not represented by an attorn ey at the time—although the Forbearance Agreement itself indicates that they were supposed to be, see id. at 10—Defendants have provid ed no explanation as to why this jury waiver, when compared to th e dozen other jury waivers theysigned, was any more incomprehensible to Mr. Green than the others, or why, given Mr . Green’s long history of signing away his right to a jury trial should a dispute regardi ng his loans from Presidential arise, this jury waiver agreement s hould be considered any less knowin g or voluntary. Because Presidential has demonstrated, by v irtue of its successful res judicata argument and by highlighting of Defendants’ l ong history of wai ving their rightto a jury trial, that the jury waiver provision in the Forbearance Ag reement was entered into knowing ly and voluntarily, Presidential’s Motion to Strike Defendants’ Jury Demand is gran ted.

V. CONCLUSION For the foregoing reasons, Plain tiff’s Renewed Motion for Parti al Summary Judgment (ECF No. 48) and Plaintiff’s Moti on to Strike Jury Demand (ECF No. 47) are GRANTED . An order consistent with this Memo randum Opinion is separately and contemporaneously issued.
Dated: July 9, 2018 RUDOLPH CONTRERAS United States District Judge