Lessard v. Nationstar Mortgage, LLC.

Filing 19

MEMORANDUM Order issued sua sponte to address some problematic aspects of defendant's Answer and Affirmative Defenses. Signed by the Honorable Milton I. Shadur on 12/28/2016:Mailed notice(clw, )

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

JAMES F. LESSARD,
Plaintiff,
v.
NATIONSTAR MORTGAGE LLC,
Defendant.

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Case No. 16 C 7551

MEMORANDUM ORDER
When this action was up for its previously-scheduled December 22 status hearing, this
Court followed its regular practice of reviewing its chambers file and saw that it did not contain a
copy of a responsive pleading by defendant National Mortgage LLC (“Nationstar”). It inquired
of Nationstar’s counsel on the subject at the status hearing, and counsel responded that a
responsive pleading had indeed been filed but that counsel had not complied with this District
Court’s LR 5.2(f) by delivering a paper copy to this Court’s chambers. That missing copy has
since been delivered to this Court’s chambers, and this memorandum opinion is issued sua
sponte to address some problematic aspects of that pleading.
To begin with, although most disclaimers of allegations in the Complaint pursuant to Fed.
R. Civ. P. (“Rule”)8(b)(5) properly track the language of that Rule, a couple of them (Answer ¶¶
31 and 33) impermissibly go on to state “and therefore denies the allegations.” That is of course
oxymoronic -- how can a defendant assert the absence of information sufficient to form a belief

as to the truth of an allegation and yet go on to deny it? Accordingly that language is stricken
from each of those paragraphs of the Answer.
More substantively, Nationstar’s counsel has advanced no fewer than a dozen
Affirmative Defenses (“ADs”) to the Complaint brought against it by James Lessard (“Lessard”).
Because a number of those are clearly problematic, this memorandum order -- in addition to
recommending that defense counsel read and pay heed to App’x ¶ 5 to this Court’s opinion in
State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001)) -- brings these
flaws to counsel’s attention:
1.

It is totally wrong, as it is totally uninformative, to state – as do

ADs 1 through 4 – that Lessard’s “claims may be barred” on various grounds.
To the extent that Nationstar actually knows that such is the case, it is obligated to
raise such now-known grounds up front or risk their forfeiture. But if such is not
the case, the proper time to advance an AD is when it really exists, rather than
being a contingent possibility.
2.

As to AD 3 in particular, which speaks of an arbitration provision

in an agreement between the parties, that cannot be left in wait like a bomb that
may be exploded at some future date – it certainly must be raised up front or
forgone as an alternative to litigation.
3.

AD 12, a reservation of the right to assert additional defenses if the

bases for such defenses are learned in the future, is both unnecessary and really

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meaningless. If that were to occur, Nationstar would have that right without any
need for a current reservation.
This Court has not sought to be exhaustive in mentioning those few ADs in this
memorandum order. If Lessard’s counsel finds any other flaws in Nationstar’s laundry list, he is
free to raise them by an appropriate motion.

Date: December 28, 2016

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Milton I. Shadur
Senior United States District Judge

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