Johnson v. Nationstar Mortgage, LLC
Filing
25
OPINION AND ORDER granting in part and denying in part 18 Motion to Strike 16 Affirmative Defenses to Complaint. The motion is granted as to affirmative defense eight; and denied as to affirmative defenses one, two, four, five, and six. Affirmative defenses three, seven, nine, and ten are deemed withdrawn. Signed by Judge John E. Steele on 8/28/2017. (RKR)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
KEVIN JOHNSON,
Plaintiff,
v.
Case No:
2:17-cv-199-FtM-99MRM
NATIONSTAR MORTGAGE, LLC,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiff’s Motion to
Strike Defendant’s Affirmative Defenses (Doc. #18) filed on June
12, 2017.
Defendant filed a Response in Opposition (Doc. #24) on
July 14, 2017.
Defendant asserts ten defenses to the claims set
forth in the Complaint, but only six are at issue here. 1
Plaintiff
seeks to strike Affirmative Defenses 1, 2, 4, 5, 6, and 8 (Doc.
#16) asserted by Nationstar Mortgage, LLC, pursuant to Fed. R.
Civ. P. 12(f) and 8(b)(1)(A).
Plaintiff seeks to strike the First
and Fourth Affirmative Defenses because they are denials and not
true affirmative defenses; and to strike the Second, Fifth, Sixth,
and Eighth Affirmative Defenses because they fail to state a claim.
For the reasons set forth below, the motion is granted in part and
denied in part.
1
As defendant has agreed to withdraw affirmative defense nos.
3, 7, 9, and 10, only affirmative defense nos. 1, 2, 4, 5, 6, and
8 are at issue in the Motion to Strike.
I.
In 2005, plaintiff Kevin Johnson obtained a home mortgage
loan from Countrywide Home Loans, Inc., and fell behind on payments
beginning in 2013.
In 2013, plaintiff filed a petition for relief
under Chapter 7 of the Bankruptcy Code.
He subsequently received
a discharge pursuant to Section 727 of the Bankruptcy Code, which
included the home mortgage loan.
Following plaintiff’s discharge from bankruptcy, Nationwide 2
continued to send him “Informational Statements” regarding the
status of the loan and began calling plaintiff regarding the loan.
Johnson responded by filing this action, alleging violations of
both federal and Florida law pursuant to the Fair Debt Collection
Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida
Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.72
et seq. 3
(Doc. #1.)
2
Countrywide was purchased
subsequently transferred service
Nationwide.
3
by
of
Bank of America, who
the mortgage loan to
To state a claim under the FDCPA, the complaint must allege
that “(1) the plaintiff has been the object of collection activity
arising from a consumer debt; (2) the defendant is a debt collector
as defined by the statute; and (3) the defendant has engaged in an
act or omission prohibited by the FDCPA.” Eke v. FirstBank Fla.,
779 F. Supp. 2d 1354, 1357 (S.D. Fla. 2011). See also Trent v.
Mortg. Elec. Registration Sys., Inc., 618 F. Supp. 2d 1356, 1361
(M.D. Fla. 2007) (stating, “when applying the provisions of the
FCCPA, ‘great weight shall be given to the interpretations of...the
federal courts relating to the federal Fair Debt Collection
Practices Act’ ” (quoting Fla. Stat. § 559.77(5) (2010))).
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II.
The Federal Rules require defendants to “affirmatively state
any avoidance or affirmative defense.”
Fed. R. Civ. P. 8(c).
“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.”
Corp., 187 F.3d 1287, 1303 (11th Cir. 1999).
Wright v. Southland
Pursuant to Rule
12(f), courts may strike “insufficient defense[s]” from a pleading
upon a motion so requesting or sua sponte.
Fed. R. Civ. P. 12(f).
As this Court recently discussed in some detail, affirmative
defenses must comply with two separate pleading requirements.
First, the defense, as plead, must contain “some facts establishing
a nexus between the elements of an affirmative defense and 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. Invs., LLC, No. 2:15-CV-389-FTM-99CM, 2016 WL
4529323, at *2 (M.D. Fla. Aug. 30, 2016) (quoting Daley v. Scott,
No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3 (M.D. Fla. June
28, 2016)).
Boilerplate pleading – that is, merely listing the
name of the affirmative defense without providing any supporting
facts – is insufficient to satisfy Rule 8(c), because it does not
provide notice sufficient to allow the plaintiff to rebut or
properly litigate the defense.
Id. (citing Grant v. Preferred
Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S.
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Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)).
Second, a defendant must avoid pleading shotgun affirmative
defenses,
viz.,
“affirmative
defenses
[that]
address[]
the
complaint as a whole, as if each count was like every other count.”
Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001), abrogated
on other grounds as recognized by, Nurse v. Sheraton Atlanta Hotel,
618 F. App'x 987, 990 (11th Cir. 2015); see also Paylor v. Hartford
Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014).
Rather, each
defense must address a specific count or counts in the complaint
or clearly indicate that (and aver how) the defense applies to all
claims.
See Byrne, 261 F.3d at 1129; see also Lee v. Habashy, No.
6:09–cv–671–Orl–28GJK, 2009 WL 3490858, at *4 (M.D. Fla. Oct. 27,
2009).
shotgun
District courts have a sua sponte obligation to identify
affirmative
replead.
defenses
and
strike
them,
with
leave
to
See Paylor, 748 F.3d at 1127; Morrison v. Executive
Aircraft Refinishing, Inc., 434 F. Supp. 2d 1314, 1318 (S.D. Fla.
2005).
A. First and Fourth Affirmative Defenses
In
the
First
and
Fourth
Affirmative
Defenses,
defendant
refers to its right under the mortgage at issue to enforce its
security interest through an in rem foreclosure action and states
that Nationwide did not seek to collect a debt personally from
plaintiff.
The defenses otherwise state that Nationstar’s conduct
was in conformity with applicable laws and regulations.
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Plaintiff
moves to strike the defense on the ground that it is a merely a
denial
of
plaintiff’s
allegations,
not
a
proper
affirmative
defense.
The
Court
finds
sufficiently pled.
that
the
affirmative
defenses
are
Under 11 U.S.C. § 524(j), a creditor may seek
“periodic payments associated with a valid security interest in
lieu
of
pursuit
524(j)(3).
of
in
rem
relief
to
enforce
the
lien.”
§
The defenses put plaintiff on notice that defendant
will be raising the issue of its good faith belief that it was not
violating
the
FDCPA
and
FCCPA
and
was
merely
asserting
its
available rights.
B. Second Affirmative Defense
In the Second Affirmative Defense, defendant alleges that the
Informational Statement sent by Nationstar to plaintiff would
inform even the “least sophisticated consumer that Nationstar was
not attempting to collect, assess, or recover a discharged debt
individually from plaintiff,” citing Helman v. Bank of America,
685 F. App’x 723 (11th Cir. 2017).
“Whether a communication
contains an implied assertion of the right to proceed personally
is a question we approach from the perspective of the least
sophisticated consumer.”
Id. at *2.
Plaintiff argues this should
be stricken because Helman is an unpublished opinion and because
Nationwide told plaintiff that he was still personally obligated
to pay the debt after the discharge.
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Nationstar responds that its
defense
of
this
case
is
that
although
it
sent
Informational
Statements and made telephone calls to plaintiff, Nationstar was
justified in doing so pursuant to the Bankruptcy Code, 11 U.S.C.
§ 524(j), in its efforts to enforce the mortgage in rem.
The
Court
finds
that
the
Second
Affirmative
Defense
is
sufficiently pled as it sets forth facts that have a direct
relationship between the defense and the facts alleged in the
Complaint to put plaintiff on notice of Nationstar’s defenses.
C.
Fifth and Sixth Affirmative Defenses
Defendant’s Fifth and Sixth Affirmative Defenses allege that
Nationstar was not attempting to collect on a debt that had been
discharged in bankruptcy because a deficiency balance had not been
determined
prior
to
the
time
of
the
Chapter
7
bankruptcy.
Plaintiff argues that these defenses fail as a matter of law
because in a no-asset Chapter 7 bankruptcy, the debt would have
been discharged so long as the creditor received notice of the
bankruptcy filing.
Defendant believes this is an argument more
appropriately raised in a motion for summary judgment and that the
defenses
adequately
allege
sufficient
facts
to
rebut
the
allegations in the Complaint.
The Court finds that the Fifth and Sixth Affirmative Defenses
are sufficiently pled as they sets forth facts that have a direct
relationship
Complaint.
between
the
defense
and
the
allegations
in
the
Although the parties dispute whether the debt was
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discharged, the affirmative defenses state a sufficient nexus with
the facts in the case, which if true, could require judgment for
defendant.
D. Eighth Affirmative Defense
Nationstar’s
Eighth
Affirmative
Defense
asserts
that
plaintiff’s Complaint is barred because any efforts to collect on
plaintiff’s mortgage loan is a direct result of plaintiff’s failure
to pay his mortgage and therefore is not a violation of the FDCPA
and the FCCPA.
Plaintiff argues that the defense should be
stricken because “unclean hands” if not a defense to a cause of
action under the FDCPA or the FCCPA.
Defendant responds that the
defense is an avoidance of plaintiff’s allegations that Nationstar
improperly sought to collect a debt by enforcing is valid security
interest in rem and that its efforts in doing so were not in
violation of the Acts.
Yet this is not what the Eighth Affirmative
Defense states and the FDCPA and FCCPA otherwise allow for a cause
of action even if the debtor fails to make payments.
“The FDCPA
is
open-ended
a
consumer
protection
statute
that
imposes
prohibitions on, inter alia, false, deceptive, or unfair debtcollection practices,” equipping debtors with a private right of
action against debt collectors.
Crawford v. LVNV Funding, LLC,
758 F.3d 1254, 1257 (11th Cir. 2014).
The Court does not see –
and defendant cites no case law in support – how a debt collector
may defend itself from liability for its practices by alleging
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that the debtor put the parties in the situation in the first
place.
Such an argument seems to be the antithesis of consumer—
protection statutes such as the FDCPA and FCCPA. 4
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Plaintiff’s Motion to Strike Defendant’s Affirmative Defenses
(Doc. #18) is granted in part and denied in part.
The Motion to
Strike is denied as to Affirmative Defenses One, Two, Four, Five,
and Six; and granted as to Affirmative Defense Eight.
Affirmative
Defenses Three, Seven, Nine, and Ten are deemed withdrawn.
DONE and ORDERED at Fort Myers, Florida, this
28th
day
of August, 2017.
Copies:
Counsel of Record
4
Congress passed the FDCPA in 1977 to stop “the use of
abusive, deceptive, and unfair debt collection practices by many
debt collectors.” 15 U.S.C. § 1692(a). Congress determined that
“[e]xisting laws and procedures” were “inadequate” to protect
consumer debtors. Id. at § 1692(b).
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