November 18, 2015

Affirmative Defenses and Motions to Strike

In the context of a foreclosure, affirmative defenses are raised at some point after the plaintiff, i.e., the bank, files its complaint. If proper defenses are not raised, you will very likely be unsuccessful in the foreclosure action. Florida Rule of Civil Procedure 1.110(d) is instructive on what affirmative defenses may be raise: “accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.” The list provided in 1.110(d) is not exhaustive and it appears that many attorneys merely invent affirmative defenses as long as there are supporting facts behind the defense. However, this opens up plaintiffs to challenging these affirmative defenses and filing motions to strike the affirmative defenses.

Much of the case law maintains that the sufficiency of affirmative defenses should be considered after the close of discovery. There is logic in this in that obviously the defendant does not know everything about the case and does not have all of the facts. The purpose of discovery is to “discover” new facts and pieces of information that you were not aware of previously. At that point the court would then be able to determine whether the defendant has uncovered evidence and fact, which are sufficient to support the affirmative defense it pled. However, many plaintiff’s attorneys, using Florida Rule of Civil Procedure 1.140(f), attempt to strike the defenses as “redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” However, the proper inquiry as to an affirmative defense (prior to the close of discovery) is whether it is “legally sufficient on its face.” Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). The purpose of the affirmative defense is merely to put the other side on notice of what is required to be proved in order to win. It essentially gives the moving party a chance to prepare.

Obviously it is necessary for the defendant to file affirmative defenses. If they don’t, they are basically conceding the case and there was not point to ever hire an attorney in the first place. However, motions to strike on the other hand really serve no effective purpose other than give plaintiff’s attorney a chance to rack of billing. They could easily just file a reply in opposition to the affirmative defenses but they don’t. The reason they don’t is simple: money.