United States District Court, N.D. Indiana, Hammond Division, Lafayette
ANTHONY G. TAYLOR, Plaintiff,
J P MORGAN CHASE, CHASE HOME FINANCE, Defendant.
OPINION AND ORDER
E. MARTIN, MAGISTRATE JUDGE
matter is before the Court on Defendant's Renewed Motion
for Leave to File First Amended Answer and Affirmative
Defenses [DE 23], filed by Defendant on November 21, 2016.
Plaintiff has responded, and Defendant has replied.
sued Defendant in state court, alleging breach of contract
and breach of the duty of good faith and fair dealing.
Plaintiff says that, after Defendant offered him a trial
modification to his mortgage payment plan under the federal
Home Affordable Modification Program (HAMP), Defendant
breached its agreement to convert the trial modification into
a permanent modification.
removed the case to federal court and filed an answer to the
complaint. Defendant later asked for leave to file an amended
answer with affirmative defenses that were not included in
Defendant's initial answer. Plaintiff objected, and the
Court denied Defendant's motion on the ground that
allowing Defendant to plead 11 of the 15 proposed affirmative
defenses would be futile. See Villa v. City of
Chicago, 924 F.2d 629, 632 (7th Cir. 1991). Defendant
now has revised its proposed affirmative defenses and again
seeks leave to file an amended answer.
may amend a pleading with the Court's leave, and the
Court “should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The decision to grant
or deny a motion to amend lies within the Court's sound
discretion, but leave to amend is “inappropriate where
there is undue delay, bad faith, dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, or
futility of the amendment.” Villa, 924 F.2d at
632; Campbell v. Ingersoll Milling Mach. Co., 893
F.2d 925, 927 (7th Cir. 1990), cert. denied, 498
Defendant's previous attempt to file amended affirmative
defenses, Plaintiff does not argue that the proposed amended
affirmative defenses will cause prejudice or undue delay, and
he does not allege bad faith or dilatory motive by Defendant.
Nor has Defendant repeatedly failed to cure deficiencies in
its affirmative defenses. So the only question, as last time,
is whether the proposed affirmative defenses are futile.
says that Defendant's revised proposed affirmative
defenses are once again futile. In Plaintiff's view,
Defendant improperly seeks to “take a second bite of
the apple” by rewording the affirmative defenses from
the previous motion and presenting them in a different
sequence. But the Court expressly invited Defendant to file a
renewed motion attaching a proposed amended answer that
corrects the improper affirmative defenses from its first
effort-see DE 22 (“the Court DENIES
Defendant's Motion . . . with leave to re-file a renewed
motion”)-and that is precisely what Defendant has done.
The new proposed affirmative defenses are “reworded,
” yes, but in such a way that they now adequately
address the deficiencies that the Court had identified.
example, Defendant previously asserted that
“Plaintiff's claims may be barred by his failure to
mitigate damages, if any, ” and the Court found this
affirmative defense to be, at best, improperly conclusory.
But now Defendant's proposed failure-to-mitigate
affirmative defense elaborates by asserting that Plaintiff
“failed to comply with the terms of the subject loan
documents” by “not attempt[ing] to sell the
subject property or obtain a new mortgage loan.” This
expanded language constitutes an appropriately “short
and plain statement” of the affirmative defense and
adequately puts Plaintiff on notice of the defense.
Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d
1286, 1294 (7th Cir. 1989) (affirmative defense must contain
“short and plain statement” of the defense);
Cottle v. Falcon Holdings Mgmt., LLC, No. 11-95,
2012 U.S. Dist. LEXIS 10478, *12 (N.D. Ind. Jan. 30, 2012)
(affirmative defense must “be adequately pled to put a
plaintiff on notice of the defense”); Design
Basics, LLC v. Windsor Homes, Inc., No. 16-51, 2016 U.S.
Dist. LEXIS 91910, *8 (N.D. Ind. July 14, 2016) (denying
motion to strike affirmative defenses because the affirmative
defenses were stated “in short and plain terms”
and “sufficiently put [the plaintiff] on notice of the
affirmative defense[s]”); accord Bielfeldt v.
Bourazak, No. 15-1419, 2016 U.S. Dist. LEXIS 46986, *6
(C.D. Ill. Apr. 7, 2016) (“Federal Rule of Civil
Procedure 8 requires for affirmative defenses, at a minimum,
fair notice of a party's defense.”). The same is
true of Defendant's other revised proposed affirmative
defenses, all of which provide sufficient additional detail
to put Plaintiff on adequate notice.
also attacks proposed affirmative defenses B, D, and G on the
merits. But the time for litigating the merits of
Defendant's proposed affirmative defenses will come
later. Foman v. Davis, 371 U.S. 178, 182 (1962)
(litigants “ought to be afforded an opportunity to test
[their] claim[s] on the merits”); Kirsch v.
Brighstar Corp., No. 12-6966, 2014 U.S. Dist. LEXIS
146641, *21 (N.D. Ill. Oct. 10, 2014) (“the Court finds
no reason to deny [defendant] the opportunity to test his
affirmative defense on the merits”). Defendant's
proposed First Amended Answer provides short and plain
statements of Defendant's proposed affirmative defenses
that adequately put Plaintiff on notice of the defenses. That
is enough, absent circumstances not present here, for justice
to require granting leave to amend.
also complains about the language contained in a sentence
near the end of Defendant's proposed First Amended
Answer, captioned “Reservation of Right.” There,
Defendant purports to “reserve its right to file such
amended Answer(s) and/or additional Affirmative Defense as
may be appropriate upon completion of its investigation and
discovery.” Plaintiff argues that a party cannot
“reserve” the right to amend an answer, as only
the opposing party's written consent or the Court's
leave can allow a party to amend a pleading. Fed.R.Civ.P.
is correct that Defendant will not be permitted to file a
second amended answer or to add more affirmative defenses
without either Plaintiff's written consent or the
Court's leave. But nothing in the sentence at issue
contradicts that, so the Court sees no reason to strike the
sentence under Federal Rule of Civil Procedure 12(f)(1) when
the amended answer is filed.