Aluia et al v. Dyck-O'Neal, Inc. et al
Filing
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ORDER granting in part and denying in part 24 Plaintiffs' Amended Motion to Strike Affirmative Defenses. The motion is GRANTED in that Defendant Law Offices of Daniel C. Consuegra, P.L.'s first, fourth, fifth, sixth, seventh, ninth, and tenth affirmative defenses are hereby STRICKEN. The motion is DENIED in all other respects. Defendant Law Offices of Daniel C. Consuegra, P.L. may cure its deficiencies by filing an amended answer and affirmative defenses no later than July 28, 2015. Signed by Judge Sheri Polster Chappell on 7/14/2015. (LMF)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHEAL ALUIA and KAYE
HAMILTON, on behalf of themselves
and all others similarly situated
Plaintiffs,
v.
Case No: 2:15-cv-81-FtM-38MRM
DYCK-O’NEAL, INC. and LAW
OFFICES OF DANIEL C.
CONSUEGRA, P.L.,
Defendants.
/
ORDER1
This matter comes before the Court on Plaintiffs’ Amended Motion to Strike
Affirmative Defenses (Doc. #24) filed on June 9, 2015. Although given the opportunity,
Defendants did not file a response in opposition. This matter is ripe for review.
Background
On February 9, 2015, Plaintiffs Michael Aluia and Kaye Hamilton filed a complaint
against Defendants Dyck-O’Neal, Inc. and Law Offices of Daniel C. Consuegra, P.L.
(“LODC”). (Doc. #1). Aluia and Hamilton reside in Michigan. (Doc. #1, at ¶¶7-8). In 2006,
while in Michigan, Aluia and Hamilton separately executed notes and mortgages with
Countrywide Home Loans, Inc. for vacation homes in Florida. (Doc. #1, at ¶¶12, 14, 25;
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Doc. #1-1; Doc. #1-3). Later in 2009 and 2010, BAC Home Loans Servicing, LP (“BAC”)
filed foreclosure actions in Florida against Aluia and Hamilton, respectively. (Doc. #1, at
¶¶13, 15). These foreclosure actions culminated in two foreclosure judgments in favor of
BAC and against Aluia and Hamilton, respectively. (Doc. #1, at ¶13; Doc. #1-2; Doc. #14). After the foreclosure judgments were issued, they were assigned to Dyck-O’Neal.
(Doc. #1, at ¶¶16-17).
Later, Dyck-O’Neal sent written communication to Aluia and Hamilton in Michigan
regarding the deficiency amounts and its role as a debt collector. (Doc. #1, at ¶22). Then
in 2014, Dyck-O’Neal through LODC filed deficiency lawsuits in Florida against Aluia and
Hamilton, separately. (Doc. #1, at ¶18). The deficiency actions sought damages in the
amount of the foreclosure deficiencies, interest, costs, and reasonable attorney’s fees.
(Doc. #1, at ¶21; see Doc. #1-7, at 3, 5).
Despite 15 U.S.C. § 1692i(a), Dyck-O’Neal and LODC knew they were filing
lawsuits against Aluia and Hamilton in a venue, Florida, other than where they resided,
Michigan. (Doc. #1, at ¶¶24, 26). Dyck-O’Neal and LODC selected to file lawsuits outside
the proper residential venues to make it difficult for Aluia and Hamilton to defend their
cases. (Doc. #1, at ¶27). Aluia and Hamilton allege Dyck-O’Neal and LODC’s violation of
Section 1692i(a) establishes a violation of the Fair Debt Collection Practices Act
(“FDCPA”).2 (Doc. #1, at ¶42). In response, LODC filed an Amended Answer and
Affirmative Defenses. (Doc. #19). Now, Aluia and Hamilton seek to strike most of the
eleven affirmative defenses along with the demand for sanctions asserted by LODC.
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This is the only remaining cause of action in this case.
2
Standard
A party is required to assert its affirmative defenses to any claim in its responsive
pleading. Royal Palm Sav. Ass’n v. Pine Trace Corp., 716 F. Supp. 1416, 1420 (M.D. Fla.
1989) (citing Fed. R. Civ. P. 12). The opposing party may then move to strike improper
affirmative defenses. See Fed. R. Civ. P. 12. Albeit, affirmative defenses are not stricken
when the defense presents a bona fide issue. Royal Palm Sav. Ass’n, 716 F. Supp. at
1420 (citing A.M. Kiddler & Co. v. Turner, 106 So.2d 905, 906 (Fla. 1958)); see also Fifth
Third Bank v. Alaedin & Majdi Invs., Inc., No. 8:11-CV-2206-T-17TBM, 2012 WL 1137104,
at *3 (M.D. Fla. Apr. 4, 2012) (explaining a motion to strike an affirmative defense is
usually denied unless the allegations have no possible relation to the controversy and
may cause prejudice to one of the parties) (quoting Story v. Sunshine Foliage World, Inc.,
120 F. Supp. 2d 1027, 1030 (M.D. Fla. 2000) (quoting Seibel v. Soc’y Lease, Inc., 969 F.
Supp. 713, 715 (M.D. Fla. 1997))). In addition, when a court reviews a motion to strike an
affirmative defense, it must accept the truthfulness of the well-pleaded facts and it cannot
consider matters beyond the pleadings. Fifth Third Bank, 2012 WL 1137104 at *3 (quoting
Thompson v. Kindred Nursing Cts. E., LLC, 211 F. Supp. 2d 1345, 1348 (M.D. Fla. 2002)
(citing Carlson Corp./Se. v. Sch. Bd. of Seminole County Fla., 778 F. Supp. 518 (M.D.
Fla. 1991))).
Discussion
i.
First Affirmative Defense
LODC’s first affirmative defense is “Defendant states that if it violated the FDCPA
. . . , which it denies, the violation was unintentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted to avoid such an
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error.” (Doc. #19, at 10, ¶1). Aluia and Hamilton argue this affirmative defense is not pled
with the necessary particularity. Upon review, the Court agrees. LODC’s affirmative
defense must do more than restate the relevant statutory language. See 15 U.S.C. §
1692k(c) (“the violation was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably adapted to avoid any such
error.”); see also Schmidt v. Synergentic Comm’s, Inc., No. 2:14-cv-539-FtM-29CM, 2015
WL 997828, at *2 (M.D. Fla. Mar. 5, 2015) (striking similar bare bone affirmative defense
brought pursuant to 15 U.S.C. § 1692k(c)). The motion is granted as it relates to the first
affirmative defense.
ii.
Second Affirmative Defense
LODC’s second affirmative defense is “Plaintiffs’ and the putative class’ claims are
barred in whole or in part as a result of their failure to mitigate their alleged damages, if
any.” (Doc. #19, at 11, ¶2). Aluia and Hamilton argue this affirmative defense is
unavailable to LODC as a matter of law. The two plaintiffs refer to an Illinois district court
case addressing a different statute, the Telephone Consumer Protection Act, for authority.
See Holtzman v. Turza, No. 08 C 2014, 2010 WL 4177150, at *5 (N.D. Ill. Oct. 19, 2010).
Upon review, the Court disagrees. See McKnight v. Benitez, 176 F. Supp. 2d 1301, 1309
n. 4 (M.D. Fla. 2001) (noting in FDCPA cases mitigation of damages is an appropriate
affirmative defense.). The motion is denied as it relates to the second affirmative defense.
iii.
Third Affirmative Defense
LODC’s third affirmative defense is “Plaintiffs’ and the putative class’ claims are
barred in whole or in part by the applicable statute of limitations, to the extent that the
alleged actions occurred outside the limitations period of the FDCPA.” (Doc. #19, at 11,
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at ¶3). Aluia and Hamilton argue this affirmative defense is legally insufficient, impertinent,
or immaterial as all relevant dates associated with and in the complaint do not exceed the
statute of limitations. These two plaintiffs also argue the third affirmative defense is an
improper conclusion. Upon review, the Court disagrees. The Court notes the merits
related to the statute of limitations is best addressed at the motion to dismiss or summary
judgment stage. The motion is denied as it relates to the third affirmative defense.
iv.
Fourth Affirmative Defense
LODC’s fourth affirmative defense is “Plaintiffs’ and the putative class’ claims may
be barred in whole or in part by the doctrines of waver and/or consent.” (Doc. #19, at 11,
at ¶4). Aluia and Hamilton assert this affirmative defense is conclusory and does not
connect the defenses to the claims. Upon review, the Court agrees. See Bartholomew v.
Pollack & Rosen, P.A., No. 2:15-cv-135-FtM-29DNF, 2015 WL 3852944, at *3 (M.D. Fla.
June 22, 2015) (finding same conclusion). The motion is granted as it relates to the fourth
affirmative defense.
v.
Fifth Affirmative Defense
LODC’s fifth affirmative defense is “Plaintiffs’ and the putative class’ claims are
barred by litigation immunity/privilege.” (Doc. #19, at 11, ¶5). Aluia and Hamilton assert
this affirmative defense is not available to the FDCPA claim. Upon review, the Court
agrees. See Corea v. BAC Home Loans Servicing LP, No. 6:11-cv-1197-Orl-22DAB,
2012 WL 1176701, at *13 (M.D. Fla. Apr. 9, 2012) (explaining that the litigation immunity
privilege is limited to Florida state causes of action and does not extend to federal causes
of action). The motion is granted as it relates to the fifth affirmative defense.
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vi.
Sixth Affirmative Defense
LODC’s sixth affirmative defense is “Plaintiffs’ and the putative class’ claims may
be barred in whole or in part by laches.” (Doc. #19, at 11, ¶6). Aluia and Hamilton assert
this affirmative defense is conclusory and contain no allegations connecting the defenses
to the claims. Upon review, the Court agrees. See generally F.T.C. v. Rawlins & Rivera,
Inc., No. 6:07-cv-146-Orl-18KRS, 2007 WL 1730091, at *2 (M.D. Fla. June 14, 2007)
(dismissing affirmative defense in light of concession). The motion is granted as it relates
to the sixth affirmative defense.
vii.
Seventh Affirmative Defense
LODC’s seventh affirmative defense is “Plaintiffs’ and the putative class claims are
barred in whole or in part by the Rooker-Feldman Doctrine and this Court lacks
jurisdiction.” (Doc. #19, at 11, ¶7). Aluia and Hamilton assert this affirmative defense is
conclusory and contains no allegations connecting the defenses to the claims. Upon
review, the Court agrees. Although the Rooker-Feldman doctrine can be a viable defense
to a FDCPA claim, more is needed than the bare bone assertions made here. See, e.g.,
Dean v. Wells Fargo Home Mortg., No. 2:10-cv-564-FtM-29SPC, 2011 WL 1515106, at
*3 (M.D. Fla. Apr. 21, 2011). The motion is granted as it relates to the seventh affirmative
defense.
viii.
Ninth Affirmative Defense
LODC’s ninth affirmative defense is “Maintenance of this action as a class action
would violate Defendants’ rights to be confronted with the witnesses against it as provided
in the Sixth Amendment to the United States Constitution.” (Doc. #19, at 11, ¶9). Aluia
and Hamilton argue this affirmative defense should be stricken because the Sixth
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Amendment only applies to criminal cases. Upon review, the Court agrees. The motion
is granted as it relates to the ninth affirmative defense.
ix.
Tenth Affirmative Defense
LODC’s tenth affirmative defense is “Plaintiffs’ and the putative class members’
claims are barred, in whole or in part, by the doctrines of settlement, release and res
judicata.” (Doc. #19, at 11, ¶10). Aluia and Hamilton assert this affirmative defense is
conclusory and contains no allegations connecting the defenses to the claims. Upon
review, the Court agrees. See generally Moss v. GEICO Indem. Co., No. 5:10-cv-104Oc-10TBS, 2011 WL 6338598, *2 (M.D. Fla. Dec. 19, 2011). The motion is granted as it
relates to the tenth affirmative defense.
x.
Eleventh Affirmative Defense
LODC’s eleventh affirmative defense is “Plaintiffs and putative class members lack
standing because there is not a live case or controversy under Article III of the U.S.
Constitution, including that no actual damages have been incurred by Plaintiff or the
putative class members.” (Doc. #19, at 12, at ¶11). Aluia and Hamilton argue this
affirmative defense should be stricken because a violation of a federal statute constitutes
a cognizable injury under Article III. Upon review, the Court finds whether the plaintiffs
have standing should be determined at another stage of litigation. Here, lack of standing
may be a viable affirmative defense. See Guididas v. Cmty. Nat’l Bank Corp., No. 8:11cv-2545-T-30TBM, 2013 WL 230243, *2 (M.D. Fla. Jan. 22, 2013) (“The affirmative
defense of standing is not insufficient nor frivolous and should not be stricken.”);
Achievement & Rehab. Ctrs., Inc. v. City of Lauderhill, No. 12-61628-Civ, 2012 WL
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6061762, *1 (S.D. Fla. Dec. 6, 2012) (finding no basis to strike standing affirmative
defense). The motion is denied as it relates to the eleventh affirmative defense.
xi.
Sanctions
Next, Aluia and Hamilton argue LODC’s sanctions request should be stricken.
Upon review of the affirmative defenses, however, there is no specific request for
sanctions. Thus, the motion is denied as it relates to sanctions.
Accordingly, it is now
ORDERED:
Plaintiffs’ Amended Motion to Strike Affirmative Defenses (Doc. #24) is GRANTED
in part and DENIED in part.
1. The motion is GRANTED in that Defendant Law Offices of Daniel C.
Consuegra, P.L.’s first, fourth, fifth, sixth, seventh, ninth, and tenth
affirmative defenses are hereby STRICKEN.
2. The motion is DENIED in all other respects.
3. Defendant Law Offices of Daniel C. Consuegra, P.L. may cure its
deficiencies by filing an amended answer and affirmative defenses no later
than July 28, 2015.
DONE and ORDERED in Fort Myers, Florida this 13th day of July, 2015.
Copies: All Parties of Record
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