Summary Judgment by Ambush: Motion to Strike Affirmative Defenses

Posted by  MotionToStrikeAffirmativeDefenses

Attorney Nick Mermiges (Miami, I think) has written an excellent article on motion practice which is very illuminating and extremely clear. In essence he has called out the bank lawyers who are filing motions to strike affirmative defenses and then using the law on summary judgment to argue their case. The result is that most of the homeowner’s affirmative defenses are indeed struck, eventually with prejudice and it is all tied to attorney fees for the benefit of the bank lawyers. The Judges are hearing these motions as though the he or she was hearing evidence, which is obviously not the case. For myself I am considering whether to file interlocutory appeals where the Judge has essentially decided the entire case based legal argument that does not even apply to the motion filed.

the basic thrust of the argument is that the Defendant has asserted “mere legal conclusions,” and that the Affirmative Defenses as pled don’t contain sufficient factual support. Plaintiffs’ counsel contend that the Defendant should have to plead specific facts in its Answer/Affirmative defenses, instead of simply asserting the legal basis for the affirmative defense.

I fell into this trap and reworded the affirmative defenses to provide a long narrative of the facts supporting the affirmative defenses. By doing that I was forced to both disclose specific facts outside of discovery and assume others because I had not received discovery. And THEN adding insult to injury I am prohibited from pursuing discovery on issues that the court has already ruled “irrelevant.”

I’ll admit that it is a clever tactic but it is only working because the Judges are letting it happen. This is summary Judgment by ambush.

these Motions are filed and granted with great frequency. Most of the time, Plaintiffs’ counsel misleadingly cite either (1) cases that discuss the sufficiency of affirmative defenses in the context of summary judgment; or (2) cases that address the pleading requirements when a party asserts an affirmative defense of fraud. See, e.g., Cady v. Chev Chase Sav. And Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988) (an opinion arising from a summary judgment order relating to a foreclosure, which primarily addresses allegations of fraud); Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) (an opinion arising from a post­trial final judgment order relating to a foreclosure, which primarily addresses the sufficiency of the appellant’s response); Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996) (an opinion arising from a challenge to a jury verdict on the grounds that the court’s jury instructions relating to the seatbelt defense were improper); Jacobs v Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (an opinion arising from an order granting a directed verdict in a landlord tenant dispute); Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989) (an opinion arising from a post­trial final judgment order relating to a probate dispute, which does

not address the standards for properly pleading an affirmative defense); Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996) (an opinion arising from an order on a motion for new trial, which sets out standards for naming a Fabre Defendant).
While all of the aforementioned opinions have little pieces of language that can be misleadingly quoted and then strung together into a motion that someone might fall for if they weren’t paying attention, the common thread that ties them all together is that they consider the sufficiency of Affirmative Defenses after the close of discovery. And, naturally, after discovery has concluded, the Court would be in the proper position to determine whether the Defendant has uncovered evidence and facts which are sufficient to support the Affirmative Defenses as pled. But, it makes no sense to apply this same test at the beginning of discovery, because it presumes that the Defendant already knows everything there is to know.

The author takes dead aim at judges and lawyers who ignore the rules of engagement in litigation. The only basis to strike affirmative defenses is that the stated affirmative defense is not an affirmative defense or is scandalous as worded. Bank lawyers are using this tactic because the court won’t grant summary judgment on the same issues. After getting this order from the court, the Plaintiff pretender lender has clear sailing over the objections and affirmative defenses as properly pled because the order from the court has struck them.

The general umbrella for these spurious motions to strike is “relevance” which is by definition an evidentiary matter not a legal sufficiency matter. If you are challenging the lawsuit filed the purpose of the affirmative defenses is to put the Plaintiff on notice of what you intend to prove — not to provide a target for the Plaintiff to argue matters of evidence or the law of civil procedure for summary judgment.

let’s take a look at the language of the operative rule. Florida Rule of Civil Procedure § 1.140(f) provides that:
“[a] party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.”
Based on the actual language of this rule, a Motion to Strike would only be proper if I asserted the same Affirmative Defense ten times (redundant), if I asserted an Affirmative Defense of Accord and Satisfaction in a Wrongful Death case (immaterial), or if one of my Affirmative Defenses was that the Plaintiff was an alcoholic communist (impertinent, scandalous). I don’t see any language directing the Court to strike allegations which have not yet been factually substantiated.

And while it appears that numerous Trial Courts aren’t inclined to adhere to the actual Rules of Civil Procedure (perhaps because Defense Counsel aren’t actually arguing the law), it turns out that multiple Florida Appellate Courts agree that the rules says what they actually say. Thus, these Courts have held that in the context of a motion to strike (i.e., prior to the close of discovery), the proper inquiry is only whether the affirmative defense is “legally sufficient on its face.” Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). Indeed, at the beginning of discovery, when a party asserts its Affirmative Defenses, the purpose of same is to establish what the Defendant seeks to prove, thereby putting the opposing party on notice. Thus, in Zito v. Washington Federal Sav. & Loan Asso., 318 So. 2d 175 (Fla. 3d DCA 1975), the Third DCA noted:
As in plaintiff’s statement of claim, the requirement of certainty will be insisted upon in the pleading of a defense; and the certainty required is that the pleader must set forth the facts in such a manner as to reasonably inform his adversary of what is proposed to be proved in order to provide the latter with a fair opportunity to meet it and prepare his evidence.

14 Responses

  1. Who’s your Judge Ivent ? You in room 2808 ? Ehh Me too… This is interesting… https://www.state.il.us/court/Opinions/AppellateCourt/2014/3rdDistrict/3130204.pdf

  2. if you are within timeline theres motion for Reconsideration – the purpose being to correct manifest errors of law or fact or newly discovered evidence.
    Not a lawyer, but i did this, outcome pending.

  3. Jan, et al, did you read Harkey, linked here the other day by, was it,
    usedkarguy? Any comments? I thought he (att) was all over the place and maybe diluted central / key issues. Still, I’m waiting for the response with baited breath.

  4. Jan, well it is true that affirmative defenses must be raised in the “first
    responsive pleading” or they’re deemed waived. But I see your point, a catch-22. I’ve taken to looking at more general business cases than foreclosure cases because it’s contract law first and foremost and the
    UCC stuff to me has proven more distracting than beneficial. And I still say the UCC is default law, used only in the absence of a controlling
    contract. I know there’s argument about whether or not a note is a contract, but one way or another, these notes imo say who may enforce them and that should resolve any inconsistancy with the default law UCC.

  5. summary judgement review:
    Nacif – v – White- Sorenson- ca 4dca-div – reverse
    Lots of discussion.
    As for rule 60b you have to plead within timeline 1 year after the judgement. In my case the appeal came under rule 60b.
    Check with your council though. My appeal is an example
    One of my questions for review is whether the court has the power to grant summary judgement in violation of the rules. 60 b provides relief from a judgement or order based on : mistakes oversights and omissions, fraud ( whether called intrinsic or extrinsic) misrepresentation,or misconduct by opposing party
    And any other reason that justifies relief – lots of good caselaw cited.
    the clause of rule 60(b) is made to SECURE justice-
    from Acres of Land,ETC.,695F.2d922-Court of Appeals,5th Circuit1983- provides a ” grand reservoir of equitible power to do justice in a particular cause.Further recent cases have uniformly held that it must be given liberal construction, any doubt should be resolved in favor of the PETITION to set aside the judgement so that cases may be decided on their merits” ( from Tozer v Charles.A MillingCo.,189F.2d242,245(3rd Circuit1951) cited in Feliciano v Reliant Tooling Company and again in Hamilton Watch company v,Atlas Container,inc.,190SE2d779-W Va:Supreme Court of Appeals 1972)

    Not a lawyer but the above was well researched, take up with council.

  6. Ed. Comment from Consumer Rights Defenders Legal Dept.

    Why is no one attacking the judge’s? Are we as litigants not aware of the use of peremptory challenges? Or, challenges for cause. Do we not now have sufficient statistics to file complaints against bench officers who for years have been shown to be clearly biased and not allowed a full and fair hearing or trial for borrowers? Why is it that nationwide, it appear that few lawyers advocate lawsuits by borrowers against lenders, servicers and the like? The Florida judicial debacle evinces this problem; no cross actions are being filed. WHY?

    Frankly, the answer is that few lawyers have the gonads to challenge with any aggression, this ongoing problem. The won’t file cross action and they continue letting judges and banks continue to bully the
    in pro ses [and those with weak counsel] who do little in the way suing, little in the way of discovery [most are too lazy] and little to fight motions for summary judgment.

    If people would start to make ‘borrowers’ motions for summary judgment BEFORE the banks do and challenge banks standing with securitization and chain of title audits under oath maybe this would stop? Start suing the banks offensively.
    If we can help anyone, call us today at 818.453.3585. Visit is further at
    CRDefenders.com

  7. This is the MOTION TO VACATE JUDGMENT ORDER that I drafted and filed IN THE CIRCUIT COURT OF COOK COUNTY ILLINOIS COUNTY DEPARTMENT – CHANCERY DIVISION on 2013 NOV 22 PM 5:38

    West End Trust 2012-1, as successor in interest to Bay view Fund Acquisitions, LLC., as successor in interest to Bay view Loan Servicing, LLC., as successor in interest to Bayview Fund Acquisitions, LLC., as successor in interest to First Midwest Bank

    Plaintiff’s

    -v-
    Linda and Joseph Venturella

    Defendant’s

    NO. 10 CH 20188
    PROPERTY ADDRESS:
    14201 S. Cicero Ave.
    Crest wood, Ill. 60455

    DEFENDANT’S MOTION TO VACATE JUDGMENT ORDER AND IN SUPPORT OF DEFENDANT’S MOTION TO STRIKE AND DISMISS PLAINTIFF’S MOTION TO SUBSTITUTE
    PLAINTIFF AND DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S FORECLOSURE COMPLAINT AND REQUEST FOR
    HEARING

    Here comes the Defendant’s, Joseph and Linda Venturella, pro se, move to vacate Plaintiff’s judgment/order pursuant to FRCP 60 (b.) (4) and (d.) (3.). This court granted Plaintiff’s relief on Oct. 19, 2013, based on false and misleading statements by Plaintiff’s. Defendant’s state in support of their motions are as follows:

    Plaintiff’s Motion To Substitute Plaintiff’s claiming they were a “new party” was a false and misleading statement by Plaintiff’s and is evidenced by the letter Defendant’s recently received from Bayview stating they are still the Plaintiff/Servicer. A copy of the letter is
    firmly attached to this Motion as Exhibits A and B.

    Plaintiff’s Lack of Proper Notice by the time of the hearing on Oct, 19, 2013, was a violation of Defendant’s right to due process and caused the offensive order to be entered.

    As a result of Defendant’s due diligence, we have discovered Plaintiff’s, Bayview Loan Servicing, do not have a Notorial Certificate and therefore, can have nothing in writing that would satisfy the statute of frauds. Plaintiff’s lack of due diligence and subsequent actions, has caused Fraud in the Procurement. As a result of Fraud in the Procurement, Plaintiff’s entire judgment/order is void and of no legal force or effect.

    Because of Plaintiff’s lack of due diligence, and Plaintiff’s subsequent actions have caused Fraud in the Procurement of Plaintiff’s suit, and is cause for dismissal of Plaintiff’s entire Foreclosure Complaint and also supports Defendant’s Motion to Dismiss scheduled for hearing on December 16, 2013. Fraud in the Procurement of Plaintiff’s suit supports Defendant’s argument in their Motion to Dismiss that Plaintiff’s suit lacks subject matter jurisdiction (810 ILCS 5/3-102).

    Defendant’s argument in support of their Motions is based on well settled case law as follows:

    Void order which is one entered by a court which lacks jurisdiction over
    parties or subject matter, or lacks inherent power to enter judgment, or order procured by fraud, can be attacked
    at any time, in any court, either directly or collaterally provided that party is
    properly before the court, People ex. re. Brizica v. Village of Lake Barrington, 644
    N.E. 2d. (Ill. App. 2 Dist. 1994).

    In re Marriage of Macino, 236 Ill. App, 3d. 886 (2nd Dist. 1992) (“if the order i[i]f
    void, it may be attacked at any time in the proceeding.”).

    The plaintiff’s false or misleading statement given under oath concerning issues central to her case amounted to fraud. See Cox v. Burke, 706 So. 2d 43, 47 (Fla. 5th DCA 1998).

    A void order is issued without jurisdiction by a judge and is void ab initio and does not have to be declared void by a judge to be void. Only on inspection of the record of the case showing that the judge was without jurisdiction or violated a person’s due process rights, or where fraud was involved in the attempted procurement of the jurisdiction, is sufficient for an order to be void, Potenz Corp. v. Petrozzini, 170 I’ll. App. 3d., 617, 525 N.E. 2d. 173, 175 (1988). In instances herein, the law has stated that the orders are void an initio and not voidable because they are already void.

    A void judgment or order is one that is entered by a court lacking jurisdiction over the parties or the subject, or lacking the inherent power to enter the particular order or judgment, or where the order was procured by fraud, In re Adoption of E.L., 733 N.E. 2d. 846, (Ill. App 1 Dist 2000).

    Void judgments generally fall into two classifications, that is, judgments where there is want of jurisdiction of person or subject matter, and judgment procured through fraud, and such judgments may be attacked directly or collaterally, Irving v. Rodriguez, 169 N.E. 2d. 145, (Ill. App. 2 Dis. 1960).

    A void judgment is one that has been procured by extrinsic or collateral fraud, or entered by court that did not have jurisdiction over subject matter or the parties, Rook v. Rook, 353 S. E. 2d. 756 (Va.1987).

    To be continued.

  8. The other motion-practice problem that is surfacing is the effort to strike affirmative defenses on the grounds that they should have been brought “at inception,” in the First response to the Complaint. yet, what typically happens is that the homeowner, faced with a very short deadline for responding to a foreclosure complaint, pleads only general denials – as the facts are not known and all that is on the table are the bald allegations of “default” and “right to foreclose by operation of law” – whatever that is supposed to mean.

    Now the case develops and new aspects start coming to light. The defendant attempts to insert the new special defenses and gets hit by the “rule” (and I use that term disparagingly) that it should have been raised at the very outset! How anybody is expected to do that when the extent of the falsities and fabrications and machinations of the gangsters has not even remotely come to light, and indeed are hidden behind a “pervasive posture of innocent opacity” of the servicers, is not explained.

    Watch out for this trap.

  9. Great post btw Neil.

  10. Aman
    Think about why this is important to ” them” that find it necessary to watch us, have every piece of detail on us, credit wise ( a gross worth on our hides, must include taxable value) because they live in a world of fear and of never having enough, thats their karma, and as they think so they become.

  11. To the Judges and Lawyers who have chosen to side with the dark side of Fraud etc………

    Today is the International Holocaust remembrance day.
    Todays technology allows for checking all of your Smartphone, and Email where abouts and it cannot be erased.

    NEVER AGAIN

  12. Rule 60 (b) (3) * (d) (3) Set aside judgement for fraud upon the court
    Motion:Fraud
    (intrinsic or extrinsic)
    void abinitio – orders already void
    Timing – A motion under Rule 60 (b) must be made within a reasonable time-
    and for reasons (1.) (2) or (3.) no more than a year After the entry of the judgment or order of the date of the proceeding.

  13. – Fraud in its procurement –
    Finance (30 ILCS 500/) Illinois Procurement Code – et all –
    (i.) no due diligence exercised about whether a contract existed.

    (f.). never agreed to our property being used as a public utility.

    (c.). (I) never signed a contract with a foreign entity to use our property for research or educational purposes.

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