Whitehead et al v. Discover Bank et al

Filing 26

DECISION AND ORDER signed by Judge Lynn Adelman on 11/20/15 granting 18 Motion to Strike. (cc: all counsel) (dm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
DAVID WHITEHEAD and TERRI
WHITEHEAD,
Plaintiffs,
v.

Case No. 15-C-0261

DISCOVER BANK and MESSERLI
& KRAMER,
Defendants.

DECISION AND ORDER
David and Terri Whitehead filed a complaint under the Fair Debt Collection
Practices Act, 15 U.S.C. § 1692 et seq., and the Wisconsin Consumer Act, Wis. Stat.
§ 427.104, against Discover Bank and the law firm of Messerli & Kramer. Before me now
is the plaintiffs’ motion to strike one of the defendants’ affirmative defenses. See Fed. R.
Civ. P. 12(f). The affirmative defense at issue is based on the bona fide error provisions
of the FDCPA and WCA. See 15 U.S.C. § 1692k(c); Wis. Stat. § 425.301(3).
The factual allegations of the complaint are described in detail in my decision on the
defendants’ motion to dismiss the complaint for failure to state a claim upon which relief
can be granted. See Whitehead v. Discover Bank, __ F. Supp. 3d __, 2015 WL 4668758
(E.D. Wis. Aug 7, 2015). For purposes of the present motion, it is sufficient to note that the
plaintiffs’ FDCPA and WCA claims are based on two alleged missteps: (1) the defendants,
in violation of state law, failed to personally serve the Whiteheads with notice of the
commencement of a state-court garnishment proceeding; and (2) the defendants, in
violation of state law, continued to accept payments from the garnishee while the
Whiteheads’ answer to the garnishment was pending. With respect to the first claim, the

defendants contend that they properly served the garnishment form on the Whiteheads
because they mailed it to the attorney who represented them prior to entry of the statecourt judgments. See Answer ¶ 20. With respect to the second claim, the defendants
admit that they continued to collect payments from the garnishee while the answer was
pending, id. ¶ 18, but they contend that state law did not prohibit them from doing so.
In their answer, the defendants asserted the following as an affirmative defense:
Plaintiffs' claims are barred by the bona fide error provisions of the FDCPA,
15 U.S.C. Section 1692k(c), and the Wisconsin Consumer Act ("WCA"), Wis.
Stat. § 425.301(3). Defendants affirmatively state that any violation of the
FDCPA or WCA was not intentional and would have resulted from a bona
fide error notwithstanding the maintenance of procedures reasonably
adapted to avoid such error. These procedures and protocols are reasonably
adapted to avoid a violation of the FDCPA or WCA, such as those alleged
in this case.
¶ 44. The plaintiffs move to strike this defense on the ground that it has not been pleaded
with sufficient detail.
Affirmative defenses are pleadings and, therefore, are subject to all pleading
requirements of the Federal Rules of Civil Procedure. Heller Fin., Inc. v. Midwhey Powder
Co., 883 F.2d 1286, 1294 (7th Cir. 1989). Rule 8(b)(1)(A) requires a party to “state in short
and plain terms its defenses to each claim asserted against it.” Rule 8(c) requires a party
to affirmatively plead an affirmative defense. The purpose of these rules is to avoid
surprise and undue prejudice to the plaintiff by providing him or her notice and the
opportunity to demonstrate why a defense should not prevail. Venters v. City of Delphi,
123 F.3d 956, 967 (7th Cir. 1997).
In the present case, the defendants’ pleading of the bona fide error affirmative
defense is inadequate. The defendants merely paraphrase the language of the statutes.
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They do not identify the procedures they maintained that might be applicable to this suit
or otherwise plead any information that would enable the plaintiff to figure out how the
defense could defeat their claims. Likewise, in their brief in opposition to the motion to
strike, the defendants do not explain how the bona fide error defense could possibly apply
to the plaintiffs’ claims. The plaintiffs (and the court) are left to guess at how the defense
could succeed. Accordingly, the defendants’ answer does not provide the plaintiffs with
notice and the opportunity to demonstrate why the defense should not prevail. I will grant
the motion to strike.
For the reasons stated, IT IS ORDERED that the plaintiffs’ motion to strike is
GRANTED.
Dated at Milwaukee, Wisconsin, this 20th day of November, 2015.
s/ Lynn Adelman
LYNN ADELMAN
District Judge

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