Bruce v. Ocwen Loan Servicing, LLC
Filing
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ORDER granting in part and denying in part 9 Motion to strike affirmative defenses. Signed by Judge Susan C Bucklew on 10/15/2012. (JD)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
KRISTEN NICOLE BRUCE,
Plaintiff,
v.
Case No. 8:12-cv-1561-T-24 MAP
OCWEN LOAN SERVICING, LLC,
Defendant.
_________________________________/
ORDER
This cause comes before the Court on Plaintiff’s Motion to Strike Affirmative Defenses.
(Doc. No. 9). Defendant opposes the motion. (Doc. No. 10). As explained below, the motion is
granted in part and denied in part.
I. Background
Plaintiff filed suit against Defendant under the Fair Debt Collections Practices Act
(“FDCPA”), Florida’s Consumer Collections Practices Act (“FCCPA”), and the Telephone
Communication Protection Act (“TCPA”). (Doc. No. 1). Plaintiff alleges that on February 1,
2010, she defaulted on a promissory note that was secured by a mortgage, and thereafter,
Defendant began attempting to collect on the debt. Plaintiff contends that Defendant’s collection
efforts included repeatedly calling her cellular phone, without her consent, using an auto-dialing
system. Plaintiff contends that Defendant made at least 879 auto-dialed calls to her cellular
phone between March 1, 2010 and July 12, 2012.
In response to Plaintiff’s complaint, Defendant filed an Answer. (Doc. No. 7).
Defendant’s Answer contained a response to each allegation of the complaint, and it also
contained a section titled, “Defenses and Affirmative Defenses,” which listed 15 defenses and
affirmative defenses.
II. Motion to Strike
In the instant motion, Plaintiff moves to strike 14 of the 15 defenses. Accordingly, the
Court will analyze each defense.
A. Standard of Review
Federal Rule of Civil Procedure 12(f) provides that the Court may order that “any
insufficient defense or any redundant, immaterial, impertinent, or scandalous matter” be stricken
from a pleading. “A motion to strike will ‘usually be denied unless the allegations have no
possible relation to the controversy and may cause prejudice to one of the parties.’” Scelta v.
Delicatessen Support Services, Inc., 57 F. Supp.2d 1327, 1347 (M.D. Fla. 1999)(quoting Seibel
v. Society Lease, Inc., 969 F. Supp. 713, 715 (M.D. Fla. 1997)).
Likewise, an affirmative defense will be stricken if the defense is insufficient as a matter
of law. Microsoft Corp. v. Jesse’s Computers & Repair, Inc., 211 F.R.D. 681, 683 (M.D. Fla.
2002). An affirmative “defense is insufficient as a matter of law only if: (1) on the face of the
pleadings, it is patently frivolous, or (2) it is clearly invalid as a matter of law.” Id. “To the
extent that a defense puts into issue relevant and substantial legal and factual questions, it is
‘sufficient’ and may survive a motion to strike, particularly when there is no showing of
prejudice to the movant.” Reyher v. Trans World Airlines, Inc., 881 F. Supp. 574, 576 (M.D.
Fla. 1995)(citation omitted).
B. Denials
In Defendant’s first and eleventh defenses, Defendant alleges that Plaintiff fails to state a
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claim. In its ninth and fifteenth defenses, Defendant alleges that it did not act intentionally. In
its thirteenth defense, Defendant alleges that Plaintiff did not suffer an injury. In its fourteenth
defense, Defendant alleges that Plaintiff cannot establish that an automatic telephone dialing
system or artificial or prerecorded voice was used to call her. Plaintiff moves to strike these six
defenses, arguing that they are denials as opposed to true affirmative defenses.
While these defenses appear to be denials of Plaintiff’s claims, rather than true
affirmative defenses, the Court finds that there is no prejudice to Plaintiff by allowing them to
remain. Accordingly, the Court denies Plaintiff’s motion to strike these defenses.
C. Irrelevant and Immaterial Defenses
In Defendant’s second defense, Defendant alleges that Plaintiff acted in bad faith by
defaulting on the underlying debt that was being collected. In its third defense, Defendant
alleges that Plaintiff is precluded from asserting her claims due to her unclean hands caused by
her default on the underlying debt. Additionally, Defendant alleges in its third defense that
Plaintiff is breaching the mortgage agreement by pursuing these claims and not paying off the
underlying debt. In its eighth defense, Defendant alleges that the underlying debt that it was
trying to collect is a legitimate debt that is due and owed by Plaintiff.
Plaintiff moves to strike these three defenses, arguing that they are irrelevant and
immaterial to the issues of whether Defendant violated the FDCPA, the FCCPA, and the TCPA.
The Court agrees with Plaintiff and strikes these three defenses.
D. Statements that are Not Defenses
In Defendant’s fourth defense, Defendant states that it reserves the right to assert
additional defenses that it discovers through the course of the litigation. Plaintiff moves to strike
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this defense, because it is not a defense at all. The Court agrees with Plaintiff and strikes this
purported defense.
In Defendant’s fifth defense, Defendant states that Plaintiff has waived her right to a jury
trial in the mortgage agreement, and therefore, her jury demand should be stricken. Plaintiff
moves to strike this defense, because it is not a defense at all. The Court agrees with Plaintiff
and strikes this purported defense. If Defendant wants to pursue the issue of whether Plaintiff
waived her right to a jury trial, the proper vehicle to do so is a motion to strike Plaintiff’s jury
demand.
E. Insufficient as a Matter of Law
In Defendant’s sixth defense, Defendant alleges that Plaintiff’s FCCPA claim fails
because it is barred by the litigation privilege. While not stated in its defense, it appears that
Defendant is asserting that because some of the calls were made during the pendency of the
foreclosure proceeding on the underlying debt, which was filed on May 18, 2010, Plaintiff’s
FCCPA claim related to such calls is barred by the litigation privilege.
Plaintiff moves to strike this defense as insufficient as a matter of law, because the
litigation privilege only applies to communications made during the course of, and related to, a
judicial proceeding. See Echervarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d
380, 384 (Fla. 2007)(citation omitted). Thus, because the calls were not required or necessary in
order to pursue the foreclosure, Plaintiff argues that the litigation privilege does not apply. The
Court agrees. See id. at 387 (J. Wells, concurring in part and dissenting in part); Monroe v.
Citimortgage, Inc., 2007 WL 2071284, at *3 (M.D. Fla. July 19, 2007). Accordingly, the Court
strikes this defense as insufficient as a matter of law.
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In Defendant’s seventh defense, Defendant alleges that Plaintiff did not suffer any
damages for its alleged FCCPA violation. Plaintiff moves to strike this defense as insufficient as
a matter of law, because actual damages are not required in order to receive statutory damages
under Florida Statute § 559.77(2). However, the FCCPA also allows an award of actual
damages, and this defense appears to be a denial of any assertion that Plaintiff suffered actual
damages for its alleged FCCPA violation. Accordingly, the Court will treat this defense as a
denial and denies Plaintiff’s motion to strike this defense.
In Defendant’s twelfth defense, Defendant alleges that Plaintiff consented to calls being
made to her cellular phone. Plaintiff moves to strike this defense as insufficient as a matter of
law, because Defendant has not set forth sufficient facts to support this defense. The Court
disagrees with Plaintiff and concludes that Plaintiff will not suffer any prejudice by allowing this
defense to stand. Accordingly, the Court denies Plaintiff’s motion to strike this defense.
III. Conclusion
Accordingly, it is ORDERED AND ADJUDGED that Plaintiff’s Motion to Strike
Affirmative Defenses (Doc. No. 9) is GRANTED IN PART AND DENIED IN PART: The
motion is GRANTED to the extent that the Court strikes Defendant’s second, third, fourth, fifth,
sixth, and eighth defenses; otherwise, the motion is DENIED.
DONE AND ORDERED at Tampa, Florida, this 15th day of October, 2012.
Copies to:
Counsel of Record
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