Roth v. Nationstar Mortgage, LLC
Filing
59
OPINION AND ORDER granting 38 Plaintiff's Motion to Strike 37 Defendant's Affirmative Defenses. Defendant may replead affirmative defenses four and five within seven (7) days of the date of this Opinion and Order. Signed by Judge John E. Steele on 12/6/2016. (KP)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
ARLENE ROTH,
Plaintiff,
v.
Case No: 2:15-cv-783-FtM-29MRM
NATIONSTAR MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
This matter comes before the Court on Plaintiff's Motion to
Strike Affirmative Defenses (Doc. #38) filed on October 5, 2016.
Defendant filed a Response in Opposition (Doc. #44) on October 24,
2016.
For the reasons set forth below, Plaintiff’s Motion to
Strike is granted.
I.
On August 29, 2016, Arlene Roth (Plaintiff) filed a fivecount Amended Complaint 1 (Doc. #33) against Nationstar Mortgage,
LLC (Nationstar) alleging violations of Section 559.72(9) of the
Florida Consumer Collection Practices Act (FCCPA), Fla. Stat. §
559.55 et seq., Sections 1692e(2)(A), 1692e(10), and 1692f of the
Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692 et
seq., and a private settlement agreement.
1
The claims are based
Although the Court denied (Doc. #20) Nationstar’s Motion to
Dismiss (Doc. #12) Plaintiff’s original complaint (Doc. #1),
Plaintiff subsequently moved (Doc. #32) to amend her complaint to
include a claim for punitive damages, which unopposed request was
granted by the Magistrate Judge (Doc. #35).
on a communication Nationstar sent Plaintiff on November 18, 2015
(the Informational Statement) (Doc. #33-1, pp. 18-20).
Plaintiff
contends the Informational Statement was sent for the improper
purpose of attempting to collect on a mortgage debt for which
Plaintiff’s personal liability had been discharged in bankruptcy.
Nationstar filed an Answer and Affirmative Defenses (Doc.
#37) on September 20, 2016, which alleges that: 1) Plaintiff has
failed to state a claim on which relief may be granted; 2)
Nationstar has not violated any laws; 3) Plaintiff’s claims are
preempted by or precluded under the Truth in Lending Act, 15 U.S.C.
§ 1601 et seq., and Section 524 of the Bankruptcy Code, 11 U.S.C.
§ 101 et seq.; 4) Plaintiff failed to mitigate her damages; and 5)
any statutory violation was the result of a “bone fide error.”
There is also a paragraph purporting to reserve Nationstar’s right
to amend the affirmative defenses and assert additional defenses.
Plaintiff now moves under Rule 12(f) to strike all of the
affirmative
defenses.
Nationstar
opposes
Plaintiff’s
Motion,
except as to affirmative defense three, which it has withdrawn.
II.
A.
Pleading Standard for Affirmative Defenses
Federal Rule of Civil Procedure 8(c) requires a defendant to
“affirmatively state any avoidance or affirmative defense.”
“An
affirmative defense is generally a defense that, if established,
requires judgment for the defendant even if the plaintiff can prove
his case by a preponderance of the evidence.”
- 2 -
Wright v. Southland
Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).
Pursuant to Rule
12(f), courts may strike “insufficient” defense from a pleading
upon a motion so requesting or sua sponte.
Fed. R. Civ. P. 12(f).
Neither the Supreme Court nor any Circuit Court of Appeals
has
addressed
whether
the
“plausibility”
pleading
regime
for
complaints adopted in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), also applies
to affirmative defenses.
This Court has held that affirmative
defenses must at least contain some facts linking the elements of
the particular defense to the allegations in the complaint, so as
to provide the plaintiff fair notice of the grounds upon which the
defense rests.
Pk Studios, Inc. v. R.L.R. Invests., LLC, No.
2:15-CV-389-FTM-99CM, 2016 WL 4529323, at *2 (M.D. Fla. Aug. 30,
2016); Daley v. Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697,
at *3 (M.D. Fla. June 28, 2016).
Boilerplate pleading – merely
listing the name of the affirmative defense without providing any
supporting facts – does not satisfy Rule 8(c) because it fails to
provide notice sufficient to allow the plaintiff to rebut or
properly litigate the defense.
See Grant v. Preferred Research,
Inc., 885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S. Postal
Serv., 842 F.2d 260, 263 (11th Cir. 1988).
B.
Affirmative Defenses One and Two – Failure to State a Claim
and Compliance with the Law
Nationstar’s first and second affirmative defenses assert,
respectively, that Plaintiff has failed to state a claim for which
relief may be granted and that Nationstar has complied with all
- 3 -
applicable laws - which is the legal equivalent of saying that
Plaintiff has failed to state claims for violations of the FDCPA
and FCCPA.
These are “general” defenses properly raised in a Rule
12(b) motion, not “affirmative” defenses to be asserted in a
responsive pleading.
See In re Rawson Food Serv., Inc., 846 F.2d
1343, 1349 & n.9 (11th Cir. 1988).
Accordingly, the Court grants
Plaintiff’s request to strike these defenses.
Pk Studios, 2016
WL 4529323, at *2; Daley, 2016 WL 3517697, at *4.
C.
Affirmative Defense Four – Failure to Mitigate Damages
The
fourth
affirmative
defense
alleges
that
Plaintiff’s
claims are barred because she failed to mitigate her damages.
Though not one of the eighteen affirmative defenses enumerated in
Rule 8(c), failure to mitigate is indeed a proper affirmative
defense, Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1287
(11th Cir. 2000), appropriately invoked where a plaintiff fails
“to make reasonable efforts to alleviate the effects of the injury”
the defendant is alleged to have caused.
Century 21 Real Estate
LLC v. Perfect Gulf Props., Inc., No. 608CV1890ORL28KR, 2010 WL
598696, at *5 (M.D. Fla. Feb. 17, 2010) (quoting Black's Law
Dictionary (9th ed. 2009)).
A defendant who succeeds in proving
this affirmative defense is typically entitled to a reduction in
the amount of damages for which the defendant is responsible.
See
Specialized Transp. of Tampa Bay, Inc. v. Nestle Waters N. Am.,
Inc., 356 F. App'x 221, 228 (11th Cir. 2009) (per curiam).
- 4 -
Specifically, Nationstar alleges that Plaintiff failed to
mitigate her damages by not calling the phone number provided on
the
bottom
Nationstar
of
stop
the
Informational
sending
her
Statement
statements.
and
Though
requesting
stated
with
adequate specificity, the defense – as pled - is immaterial to
Plaintiff’s claims.
sent
Plaintiff
any
The Complaint does not allege that Nationstar
communications
after
the
Informational
Statement, and the Court fails to see how calling Nationstar would
have mitigated the harm that receiving the Informational Statement
allegedly caused Plaintiff.
Accordingly, the Court will strike
affirmative defense four with leave to amend. 2
D.
Affirmative Defense Five – Bona Fide Error
Affirmative defense five asserts that even if Nationstar
violated the FDCPA or FCCPA by sending the Informational Statement,
such violation “was not intentional and [was] the result of a bona
fide
error
notwithstanding
the
maintenance
reasonably adapted to avoid any such error.”
of
procedures
Plaintiff contends
that this defense should be stricken because Nationstar has not
alleged any supporting facts, namely, what the error was and what
2
Because the Court strikes this defense, the Court need not yet
resolve Plaintiff’s argument that the only proper affirmative
defenses to an FDCPA claim are the three enumerated in 15 U.S.C.
§ 1692k: bona fide error, statute of limitations, and good faith
conformity with an advisory opinion of the Bureau of Consumer
Financial Protection. The Court notes, however, that at least one
federal court has considered and rejected this contention. Perez
v. Gordon & Wong Law Grp., P.C., No. 11-CV-03323-LHK, 2012 WL
1029425, at *10 (N.D. Cal. Mar. 26, 2012) (“[T]he universe of
appropriate defenses available to a defendant in an FDCPA case is
not limited to those expressly enumerated in § 1692k.”).
- 5 -
preventative procedures Nationstar had in place.
Plaintiff claims
further that the defense is not pled with the particularity that
Rule 9(b) requires for all averments of mistake.
Nationstar’s Answer simply parrots the “bona fide error”
language of 15 U.S.C. § 1692k(c).
“Such a defense, which does not
provide any information connecting it to Plaintiff's claims, is
precisely the type of bare-bones conclusory allegation” that is
insufficient under Rule 8(c).
Bartholomew v. Pollack & Rosen,
P.A., No. 2:15-CV-135-FTM-29, 2015 WL 3852944, at *2 (M.D. Fla.
June 22, 2015) (striking boilerplate bona fide error defense);
Schmidt v. Synergentic Commc'ns, Inc., No. 2:14-CV-539-FTM-29CM,
2015 WL 997828, at *2 (M.D. Fla. Mar. 5, 2015) (same).
Affirmative
defense five is, therefore, stricken with leave to amend. 3
E.
Affirmative Defense Six – Reservation of Rights
Although Plaintiff does not request to strike Nationstar’s
“reservation of rights” paragraph, she does contend that it is
not a proper affirmative defense.
The Court agrees and thus will
sua sponte strike the reservation of rights from the Answer.
3
See
Without deciding the issue, the Court observes that several
courts, including courts in this District and Circuit, have held
that the bona fide error defense is subject to Rule 9(b)’s
heightened pleading standards.
E.g., Walker v. Credit Control
Servs., Inc., No. 8:15-CV-1114-T-17TGW, 2015 WL 4571158, at *2
(M.D. Fla. July 28, 2015); Wiebe v. Zakheim & Lavrar, P.A., No.
6:12-CV-1200-ORL-18, 2012 WL 5382181, at *2 (M.D. Fla. Nov. 1,
2012); Arnold v. Bayview Loan Servicing, LLC, No. CV 14-0543-WSC, 2016 WL 375154, at *7 (S.D. Ala. Jan. 29), aff'd, No. 16-10742,
2016 WL 4750211 (11th Cir. Sept. 13, 2016) (per curiam).
- 6 -
Guididas v. Cmty. Nat’l Bank Corp., No. 8:11-CV-2545-T-30TBM, 2013
WL 230243, at *3 (M.D. Fla. Jan. 22, 2013).
Accordingly, it is hereby
ORDERED:
1.
Plaintiff's Motion to Strike Affirmative Defenses (Doc.
#38) is GRANTED and Nationstar’s affirmative defenses are stricken
in their entirety.
2.
Nationstar may replead affirmative defenses four and
five within seven (7) days of the date of this Opinion and Order.
DONE and ORDERED at Fort Myers, Florida, this 6th day of
December, 2016.
Copies:
Counsel of Record
- 7 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?