Deutsche Bank National Trust Company v. Abell et al

Filing 14

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 7/20/2012:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DEUTSCHE BANK NATIONAL TRUST
COMPANY, AS TRUSTEE UNDER THE
POOLING AND SERVICING AGREEMENT
DATED AS OF SEPTEMBER 1, 2003,
MORGAN STANLEY ABS CAPITAL INC.
TRUST 2003-NC8,
Plaintiff,
v.
ALITA A. ABELL, CAPITAL ONE BANK
(USA), N.A., SUCCESSOR IN INTEREST
TO CAPITAL ONE BANK, CRESANDRA
WILLIAMS,
Defendants.

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No. 12 C 2607

MEMORANDUM ORDER
Alita Abell ("Abell"), the mortgagor co-defendant in this mortgage foreclosure action, has
filed her Answer and Affirmative Defenses ("ADs") to the Complaint brought by Deutsche Bank
National Trust Company as Trustee. Because that responsive pleading is problematic in a
number of respects, this Court sua sponte strikes that pleading, but with leave granted to file a
corrected version.
For one thing, Abell's counsel has ignored (and therefore not complied with) this District
Court's LR 10.1. There is a good reason for that provision, and counsel must comply with it
when she returns to the drawing board.

Next, Answer ¶ 1 says that no response is required to Complaint ¶ 1. No such exception
is contained in Fed. R. Civ. P. ("Rule") 8(b) -- and more importantly, the allegation must
obviously be admitted rather than denied.
There are a number of places where Abell's counsel attempts to invoke the disclaimer
permitted by Rule 8(b)(5) (see Answer ¶¶ 2, 3, 5, 10(d), 10(l) and 10(n)). In every instance,
counsel has inexplicably failed to follow the clear roadmap charted by that Rule. And beyond
that, each attempted disclaimer is followed by "and therefore denies same." That is of course
oxymoronic – how can a party that asserts (presumably in good faith) that it lacks even enough
information to admit or deny an allegation (let alone to form a belief, as should have been
asserted) then proceed to deny it in compliance with Rule 11(b)?
Next, Answer ¶ 1 is not the only place that Abell's counsel has made the unwarranted
assertion that no response is required to the Complaint's allegations -- see Answer ¶¶ 7, 10(o),
10(q), 10(r) and 10(s). Counsel should take a fresh look at those allegations.
As stated at the outset, the present pleading is stricken, but with leave to file an
appropriate responsive pleading on or before July 30, 2012. It should be added that this Court
has made no effort to address the ADs, either in terms of their viability or otherwise -- that
subject will be left to plaintiff's counsel.

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Milton I. Shadur
Senior United States District Judge
Date: July 20, 2012.

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