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Johnson v. Nationstar Mortgage, LLC

United States District Court, M.D. Florida, Fort Myers Division

August 28, 2017

KEVIN JOHNSON, Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, Defendant.

          OPINION AND ORDER

          JOHN E. STEELE UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff's Motion to Strike Defendant's Affirmative Defenses (Doc. #18) filed on June 12, 2017. Defendant filed a Response in Opposition (Doc. #24) on July 14, 2017. Defendant asserts ten defenses to the claims set forth in the Complaint, but only six are at issue here.[1] Plaintiff seeks to strike Affirmative Defenses 1, 2, 4, 5, 6, and 8 (Doc. #16) asserted by Nationstar Mortgage, LLC, pursuant to Fed.R.Civ.P. 12(f) and 8(b)(1)(A). Plaintiff seeks to strike the First and Fourth Affirmative Defenses because they are denials and not true affirmative defenses; and to strike the Second, Fifth, Sixth, and Eighth Affirmative Defenses because they fail to state a claim. For the reasons set forth below, the motion is granted in part and denied in part.

         I.

         In 2005, plaintiff Kevin Johnson obtained a home mortgage loan from Countrywide Home Loans, Inc., and fell behind on payments beginning in 2013. In 2013, plaintiff filed a petition for relief under Chapter 7 of the Bankruptcy Code. He subsequently received a discharge pursuant to Section 727 of the Bankruptcy Code, which included the home mortgage loan.

         Following plaintiff's discharge from bankruptcy, Nationwide[2]continued to send him “Informational Statements” regarding the status of the loan and began calling plaintiff regarding the loan. Johnson responded by filing this action, alleging violations of both federal and Florida law pursuant to the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., and the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.72 et seq.[3] (Doc. #1.)

         II.

         The Federal Rules require defendants to “affirmatively state any avoidance or affirmative defense.” Fed.R.Civ.P. 8(c). “An affirmative defense is generally a defense that, if established, requires judgment for the defendant even if the plaintiff can prove his case by a preponderance of the evidence.” Wright v. Southland Corp., 187 F.3d 1287, 1303 (11th Cir. 1999). Pursuant to Rule 12(f), courts may strike “insufficient defense[s]” from a pleading upon a motion so requesting or sua sponte. Fed.R.Civ.P. 12(f).

         As this Court recently discussed in some detail, affirmative defenses must comply with two separate pleading requirements. First, the defense, as plead, must contain “some facts establishing a nexus between the elements of an affirmative defense and the allegations in the complaint, ” so as to provide the plaintiff fair notice of the grounds upon which the defense rests. PK Studios, Inc. v. R.L.R. Invs., LLC, No. 2:15-CV-389-FTM-99CM, 2016 WL 4529323, at *2 (M.D. Fla. Aug. 30, 2016) (quoting Daley v. Scott, No: 2:15-cv-269-FtM-29DNF, 2016 WL 3517697, at *3 (M.D. Fla. June 28, 2016)). Boilerplate pleading - that is, merely listing the name of the affirmative defense without providing any supporting facts - is insufficient to satisfy Rule 8(c), because it does not provide notice sufficient to allow the plaintiff to rebut or properly litigate the defense. Id. (citing Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th Cir. 1989); Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988)).

         Second, a defendant must avoid pleading shotgun affirmative defenses, viz., “affirmative defenses [that] address[] the complaint as a whole, as if each count was like every other count.” Byrne v. Nezhat, 261 F.3d 1075, 1129 (11th Cir. 2001), abrogated on other grounds as recognized by, Nurse v. Sheraton Atlanta Hotel, 618 F.App'x 987, 990 (11th Cir. 2015); see also Paylor v. Hartford Fire Ins. Co., 748 F.3d 1117, 1127 (11th Cir. 2014). Rather, each defense must address a specific count or counts in the complaint or clearly indicate that (and aver how) the defense applies to all claims. See Byrne, 261 F.3d at 1129; see also Lee v. Habashy, No. 6:09-cv-671-Orl-28GJK, 2009 WL 3490858, at *4 (M.D. Fla. Oct. 27, 2009). District courts have a sua sponte obligation to identify shotgun affirmative defenses and strike them, with leave to replead. See Paylor, 748 F.3d at 1127; Morrison v. Executive Aircraft Refinishing, Inc., 434 F.Supp.2d 1314, 1318 (S.D. Fla. 2005).

         A. First and Fourth Affirmative Defenses

         In the First and Fourth Affirmative Defenses, defendant refers to its right under the mortgage at issue to enforce its security interest through an in rem foreclosure action and states that Nationwide did not seek to collect a debt personally from plaintiff. The defenses otherwise state that Nationstar's conduct was in conformity with applicable laws and regulations. Plaintiff moves to strike the defense on the ground that it is a merely a denial of plaintiff's allegations, not a proper affirmative defense.

         The Court finds that the affirmative defenses are sufficiently pled. Under 11 U.S.C. § 524(j), a creditor may seek “periodic payments associated with a valid security interest in lieu of pursuit of in rem relief to enforce the lien.” § 524(j)(3). The defenses put plaintiff on notice that defendant will be raising the issue of its good faith belief that it was not violating the FDCPA and FCCPA and was merely asserting its available rights.

         B. Second Affirmative Defense

         In the Second Affirmative Defense, defendant alleges that the Informational Statement sent by Nationstar to plaintiff would inform even the “least sophisticated consumer that Nationstar was not attempting to collect, assess, or recover a discharged debt individually from plaintiff, ” citing Helman v. Bank of America, 685 F. App'x 723 (11th Cir. 2017). “Whether a communication contains an implied assertion of the right to proceed personally is a question we approach from the perspective of the least sophisticated consumer.” Id. at *2. Plaintiff argues this should be stricken because Helman is an unpublished opinion and because Nationwide told plaintiff that he was still personally obligated to pay the debt after the discharge. Nationstar responds that its defense of this case is that ...


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