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Aguilar v. LVNV Funding LLC

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

July 30, 2019

ORLANDO AGUILAR, Plaintiff,
v.
LVNV FUNDING LLC and O&L LAW GROUP, P.L., Defendants.

          OPINION AND ORDER

          JOHN E. STEELE, SENIOR UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on plaintiff's Motion to Strike (Doc. #33) filed on May 9, 2019. Defendant filed a Response (Doc. #35) on May 16, 2019. For the reasons set forth below, the motion is denied.

         I.

         On February 2, 2019, plaintiff Orlando Aguilar (Plaintiff) filed a Complaint (Doc. #1) against defendant O&L Law Group, P.L. (O&L), alleging numerous violations of the Fair Debt Collection Practices Act (the FDCPA). According to the Complaint: At some point after August 10, 2001, Plaintiff defaulted on a credit card debt he incurred, and his debt was ultimately sold to Hudson & Keyse, L.L.C. (H&K). (Doc. #1, ¶¶ 9-10.) On September 22, 2008, H&K filed a debt-recovery action against Plaintiff in the County Court of the Twentieth Judicial Circuit in and for Lee County, Florida. (Id. ¶ 11.) On December 8, 2008[1], the county court entered final judgment in favor of H&K and against Plaintiff. (Id. p. 35.)

         In the county court action on June 13, 2016, H&K filed a notice indicating that it assigned its interests in the final judgment to LVNV. (Id. ¶ 13.) The notice attached an affidavit executed by “an authorized representative of LVNV, ” which provided that H&K assigned its rights in the final judgment to LVNV “in exchange for valuable consideration . . . .” (Id. p. 38.) O&L then began representing LVNV in the county court action. (Id. ¶ 19.) On May 18, 2018, O&L, on behalf of its client LVNV, filed a motion for writ of garnishment in the county court case, seeking to garnish Plaintiff's wages. (Id.)

         In this case, Plaintiff alleges O&L violated the FDCPA by (1) “falsely alleging to [Plaintiff] and to the Lee County Court . . . that LVNV, a non-party . . . was legally entitled to collect” the debt owned by H&K; (2) “falsely alleging . . . that LVNV was assignee and legal owner of the” debt owned by H&K; and (3) “manipulating the court system into garnishing [Plaintiff's] wages in favor of LVNV.” (Id. ¶¶ 31, 37, 55.) O&L filed an Amended Answer and Affirmative Defenses (Doc. #29) on April 25, 2019. In it, O&L asserts that (1) Plaintiff failed to mitigate his damages; (2) “its liability is excused because its error was not intentional and resulted despite the adaptation of reasonable procedures designed to avoid violations of the Fair Debt Collection Practices Act”; and (3) Plaintiff's claims are barred in part by the FDCPA's statute of limitations. (Id. pp. 8-9.) Plaintiff now moves to strike O&L's Second and Third Affirmative Defenses.

         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 has recently discussed in detail, compliance with Rule 8(c) requires a defendant to set forth “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. 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)). Requiring defendants to allege some facts linking the defense to the plaintiff's claims “streamlines the pleading stage, helps the parties craft more targeted discovery requests, and reduces litigation costs.” Id. (citations omitted).

         III.

         A. Second Affirmative Defense

         O&L's Second Affirmative Defense provides that:

To the extent that Plaintiff can establish O&L committed any violation of the Fair Debt Collection Practices Act, its liability is excused because its error was not intentional and resulted despite the adaptation of reasonable procedures designed to avoid violations of the Fair Debt Collection Practices Act, including, but not limited to its processes for review and analysis of assignment documents provided by its debt buyer clients including, but not limited to requiring verified affidavits of assignments.

(Doc. #29, p. 9.) Plaintiff seeks to strike this affirmative defense because it “fails to notify Plaintiff of the specific facts giving rise to such defense in this case.” (Doc. #33, p. 3.) In particular, Plaintiff contends that O&L failed to “identif[y] the alleged error or errors” and also failed to “specifically ...


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