Peters et al v. Select Portfolio Servicing Inc.
Filing
26
OPINION AND ORDER granting in part and denying in part 22 Plaintiffs' Motion to Strike Defendant's Affirmative Defenses. The Motion is granted to the extent that Affirmative Defenses Two and Three are stricken with leave to amend within FOURTEEN (14) DAYS of this Opinion and Order; otherwise, the Motion is denied. Affirmative Defense One is deemed withdrawn. Signed by Judge John E. Steele on 10/17/2018. (BLW)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
BRUCE L. PETERS, III, and
HOLLY PETERS,
Plaintiffs,
v.
Case No:
2:18-cv-401-FtM-99MRM
SELECT PORTFOLIO SERVICING,
INC.,
Defendant.
OPINION AND ORDER
This matter comes before the Court on plaintiffs’ Motion to
Strike
Defendant’s
September 19, 2018.
Affirmative
Defenses
(Doc.
#22)
filed
on
Defendant filed a Response in Opposition
(Doc. #25) on October 3, 2018.
Defendant asserts four affirmative
defenses to the claims set forth in the Complaint, but only three
are at issue here. 1
Plaintiffs seek to strike Affirmative Defenses
2, 3, and 4 (Doc. #12) asserted by Select Portfolio Servicing,
Inc., pursuant to Fed. R. Civ. P. 12(f) and 8(b)(1)(A).
For the
reasons set forth below, the Motion is granted in part and denied
in part with leave to amend.
I.
This is a fair debt collection case.
In 2006, plaintiffs
obtained a home mortgage loan from Countrywide Home Loans, Inc.,
1
Defendant withdrew affirmative defense no. 1.
and fell behind on payments beginning in 2008.
The debt was
transferred to the Bank of New York Mellon (“BONY”) in November
2008 and BONY filed a foreclosure complaint against plaintiffs in
2012.
A final judgment of foreclosure was entered and in March
2017, the property was sold at a short sale.
Because of the short
sale, plaintiffs allege that they no longer had any legal interest
in the property and were no longer responsible for any further
payments on the debt.
Nonetheless,
in
(Doc. #1, ¶ 16.)
July
2017,
the
servicing
of
plaintiffs’
mortgage loan was transferred to defendant and defendant began
sending
correspondence
and
mortgage
statements
attempting to collect a debt on behalf of BONY.
1-6.)
Plaintiffs
responded
by
filing
this
to
plaintiffs,
(Docs. ##1-4 -
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.
(Doc. #1.)
II.
The Federal Rules of Civil Procedure require a defendant to
“affirmatively state any avoidance or affirmative defense.”
R. Civ. P. 8(c).
Fed.
“An affirmative defense is generally a defense
that, if established, requires judgment for the defendant even if
the
plaintiff
evidence.”
can
prove
his
case
by
a
preponderance
of
the
Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th
- 2 -
Cir.
1999).
“insufficient
Pursuant
to
defense[s]”
requesting, or sua sponte.
Rule
from
a
12(f),
courts
pleading
upon
may
a
strike
motion
so
Fed. R. Civ. P. 12(f).
As this Court has recently discussed on several occasions,
compliance with Rule 8(c) requires a defendant to set forth “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 a plaintiff adequate grounds to rebut or
properly litigate the defense.
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)).
A. Second and Third Affirmative Defenses (Intent and Bona Fide
Error)
In
the
Second
and
Third
Affirmative
Defenses,
defendant
claims that it did not have the requisite intent to violate the
FCCPA and any violation resulted from a bona fide error, citing
Fla. Stat. § 559.72(9), which states: “In collecting consumer
- 3 -
debts, no person shall . . . (9) claim, attempt, or threaten to
enforce a debt when such person knows that the debt is not
legitimate, or assert the existence of some other legal right when
such person knows that the right does not exist.” (emphasis added).
Plaintiff moves to strike the defenses claiming they are merely a
denial of plaintiffs’ allegations and that the defenses fail to
allege sufficient facts giving rise to the defenses.
These affirmative defenses are merely a restatement of the
bona fide error defense found at Fla. Stat. § 559.77(3) and 15
U.S.C. § 1692k(c).
The defense found at 15 U.S.C. § 1692k(c)
provides:
A debt collector may not be held liable in any action
brought under this subchapter if the debt collector
shows by a preponderance of evidence that the violation
was not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably
adapted to avoid any such error.
15 U.S.C. § 1692k(c).
fide
defense
at
Fla.
The FCCPA includes a nearly identical bona
Stat.
§
559.77(3).
“A
debt
collector
asserting the bona fide error defense must show by a preponderance
of the evidence that its violation of the Act: (1) was not
intentional; (2) was a bona fide error; and (3) occurred despite
the maintenance of procedures reasonably adapted to avoid any such
error.”
Edwards v. Niagara Credit Sols., Inc., 584 F.3d 1350,
1352–53 (11th Cir. 2009).
“Such a defense, which does not provide
any information connecting it to plaintiff’s claims, is precisely
- 4 -
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
Commc’ns,
Inc.,
No.
Synergentic
error
defense);
Schmidt
2:14-CV-539-FTM-29CM,
997828, at *2 (M.D. Fla. Mar. 5, 2015) (same).
2015
v.
WL
Therefore, the
affirmative defenses will be stricken, with leave to amend.
B. Fourth Affirmative Defense
The Fourth Affirmative Defense states in its entirety: “To
the extent Plaintiffs have experienced any actual damages, they
were
the
result
responsible.”
of
entities
for
(Doc. #12, p. 6.)
which
SPS
is
not
legally
Plaintiffs argue that this
defense is wholly hypothetical and fails to raise a right to relief
above the speculative level as it does not identify the entities
that might be responsible or their acts or omissions.
The Court disagrees that defendant must specifically identify
the non-party and its acts or omissions at this early stage of the
proceedings.
The Court finds no basis to strike defendant’s
Fourth Affirmative Defense prior to the conclusion of discovery.
Accordingly, it is hereby
ORDERED AND ADJUDGED:
Plaintiffs’ Motion to Strike Defendant’s Affirmative Defenses
(Doc. #22) is GRANTED in part and DENIED in part to the extent
that Affirmative Defenses Two and Three are stricken with leave to
- 5 -
amend
within
FOURTEEN
(14)
DAYS
otherwise, the Motion is denied.
of
this
Opinion
and
Order;
Affirmative Defense One is
deemed withdrawn.
DONE and ORDERED at Fort Myers, Florida, this __17th__ day of
October, 2018.
Copies:
Counsel of Record
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