Webb v. New Penn Financial, LLC.

Filing 13

MEMORANDUM Order: A self-contained Amended Answer is ordered to be filed on or before August 18, 2016. Signed by the Honorable Milton I. Shadur on 8/4/2016:Mailed notice(clw, )

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

DARRYL WEBB,

)
)
Plaintiff,
)
)
v.
)
)
NEW PENN FINANCIAL d/b/a SHELLPOINT )
MORTGAGE SERVICING,
)
)
Defendant.
)

Case No. 16 C 4537

MEMORANDUM ORDER
This Court has received the judge's courtesy copy of the Answer filed by New Penn
Financial d/b/a Shellpoint Mortgage Servicing ("Shellpoint") to the Fair Debt Collection
Practices Act lawsuit brought against it by Darryl Webb ("Webb"). Because that responsive
pleading contains a number of the venial (not mortal) sins committed all too frequently by
defense counsel and adverted to by this Court about the turn of the century in the Appendix to
State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001), 1 it is troubling to find
those bad habits persisting among lawyers -- and more so where, as here, defense counsel is a
member of one of the nation's leading law firms.
In any event, the first of several glitches is found in the Answer's numerous invocations
of the Fed. R. Civ. P. ("Rule") 8(b)(5) disclaimer that is made available when a defendant cannot
either admit or deny a plaintiff's allegation as directed in Rule 8(b)(1)(B) (Answer ¶¶ 5, 8, 9, 11,
______________________________
1
That Appendix had its origin in the desire to spare this Court's then long-term secretary
the burden of having to transcribe this Court's repeated dictation again and again.

13-16, 18, 21, 26 and 31-33). After adhering meticulously to the locution provided in Rule
8(b)(5) -- something that lawyers frequently do not -- each of those paragraphs of the Answer
concludes with the phrase "and thus denies the same." It is of course oxymoronic for a party to
assert (presumably in good faith) that it lacks even enough information to form a belief as to the
truth of an allegation, then proceed to deny it. Because such a denial is at odds with the pleader's
obligations under Rule 11(b), the quoted language is stricken from each of those paragraphs of
the Answer.
Next, Answer ¶ 6 is not directly responsive to the corresponding allegations in Webb's
Complaint ¶ 6. In the rewrite of the Answer that is ultimately ordered here, defense counsel
should take a hard look at that response (among other things, an answer's reference to "any
allegations that are inconsistent with the foregoing" poses a problem for any reader, because it
calls for a mindreading exercise into what the drafter of the Answer may view as "inconsistent").
Next, Answer ¶ 19, instead of straightforwardly admitting Webb's Complaint ¶ 19
allegation, says that the document quoted there "speaks for itself." Not so -- in that respect, see
App'x ¶ 3 to State Farm.
Finally, a number of responses say quite inaccurately that an allegation characterized by
defense counsel as stating a legal conclusion need not be answered (see Answer ¶¶ 20, 44, 45
and 49). That of course is dead wrong -- remember that the allegations that are archetypically
legal conclusions are those stating jurisdiction and venue, yet no one would really dream of
asserting that those allegations call for no response because they are indeed legal conclusions.
In all events, the matters addressed here are sufficiently numerous that serving the
convenience of any reader calls for a self-contained Amended Answer, which is ordered to be
filed on or before August 18, 2016. No charge may be made to Shellpoint by its counsel for the
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added work and expense incurred in correcting counsel's errors. Shellpoint's counsel are ordered
to apprise their client to that effect by letter, with a copy to be transmitted to this Court's
chambers as an informational matter (not for filing).

__________________________________________
Milton I. Shadur
Senior United States District Judge
Date: August 4, 2016

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