Pickering et al v. Bank of America Home Loans et al

Filing 72

ORDER granting in part Plaintiffs' 68 Motion to Strike Affirmative Defenses. Defendant BANA is granted leave to file an Amended Answer curing deficiencies no later than thirty (30) days from the date of this Order. Signed by Judge Ricardo S Martinez. (PM) cc: plaintiffs via first class mail

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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STEPHANIE L. PICKERING and TERRY A.
O’KEEFE,
Plaintiffs,

Case No. C15-1983-RSM
ORDER GRANTING IN PART
PLAINTIFFS’ MOTION TO STRIKE
AFFIRMATIVE DEFENSES

v.
BANK OF AMERICA HOME LOANS, et al.,
Defendants.

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This matter comes before the Court on Plaintiffs’ “Reply and Request to Strike

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Defendants’ Affirmative Defenses.” Dkt. #68. The Court interprets Plaintiffs’ filing as a

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Motion to Strike under Rule 12(f).
An affirmative defense must be pled in such a way that plaintiffs have “fair notice” of

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the defense, which generally requires that defendants state the nature and grounds for the

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affirmative defense.

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Employee Painters’ Trust v. Pac. Nw. Contractors, Inc., 2013 WL

1774628, at *4 (W.D. Wash. Apr. 25, 2013).
Defendant Bank of America, N.A. (“BANA”) opposes this Motion, arguing:
Plaintiffs do not raise legal challenges to the affirmative defenses
raised in BANA’s Answer To Plaintiffs’ Second Amended
Complaint For Violation of Real Estate Settlement Procedures Act
ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE
DEFENSES - 1

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(RESPA) 12 CFR 1024.41, ECF No. 66, pp. 10-15, ¶¶ 1-24.
Instead, Plaintiffs’ use their Motion To Strike to raise factual
challenges to BANA’s affirmative defenses, See generally, ECF
No. 68. At its heart, Plaintiffs’ Motion to Strike is not a challenge
to the propriety of BANA’s affirmative defenses but instead is an
attempt by Plaintiffs to litigate the facts underlying their suit.
Dkt. #70 at 1–2.

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The Court agrees with Defendant. Plaintiffs appear to be moving for judgment on the

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pleadings, or even making arguments for trial, by relying on the factual assertions in their

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Second Amended Complaint. These type of arguments do not satisfy the standard for a motion

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to strike. However, the Court has reviewed Defendant’s affirmative defenses and finds that

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many of them do not provide adequate notice to Plaintiffs because they do not state the nature

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and grounds for asserting that affirmative defense.

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Defendant’s Second (Laches/Estoppel), Fourth (Waiver), Sixth (Contribution), Seventh (Fault

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Accordingly, the Court will strike

of Others), Eighth (Offset), Fifteenth (Intervening Acts), Seventeenth (Unjust Enrichment),
Nineteenth (Unclean Hands), Twentieth (Mistake), and Twenty-Third (Statute of Limitations)

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Affirmative Defenses. Defendant requests leave to amend its Answer and the Court finds that

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such leave should be given under these circumstances. The Court notes that Defendant’s

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remaining affirmative defenses provide adequate notice, as demonstrated by Plaintiffs’ detailed
arguments in the instant Motion.
Having reviewed the relevant briefing, the declarations and exhibits attached thereto,
and the remainder of the record, the Court hereby finds and ORDERS:
1) The following affirmative defenses in Defendant BANA’s Answer are STRICKEN:
Defendant’s Second (Laches/Estoppel), Fourth (Waiver), Sixth (Contribution),

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Seventh (Fault of Others), Eighth (Offset), Fifteenth (Intervening Acts), Seventeenth

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ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE
DEFENSES - 2

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(Unjust Enrichment), Nineteenth (Unclean Hands), Twentieth (Mistake), and
Twenty-Third (Statute of Limitations) Affirmative Defenses.

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2) Defendant BANA is granted leave to file an Amended Answer curing the above-

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mentioned deficiencies no later than thirty (30) days from the date of this Order.

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DATED this 2 day of May, 2018.

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A

RICARDO S. MARTINEZ
CHIEF UNITED STATES DISTRICT JUDGE

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ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO STRIKE AFFIRMATIVE
DEFENSES - 3