One unsettling theme that we as foreclosure defense attorneys often see play out is that within weeks of the Defendant filing their Answer and Affirmative Defenses (typically within 20 days of any Motion to Dismiss being denied) the Plaintiff’s attorney, almost as a physical reaction, files a Motion to Strike Answers and Affirmative Defenses. While there is nothing patently wrong with the banks filing of a Motion to Strike Answers and Affirmative Defenses, the issue I take is the way in which the Bank’s attempt to argue them at the hearing and respectively, the routine manner in which the Court’s so liberally grant them. The trend I’m speaking of, is that within the last year or so, the banks now argue their Motion to Strike as if it’s the Defendant’s burden to prove each affirmative defense as supported with every specific supporting fact and if the Defendant does not support each defense with the utmost detailed facts, then that affirmative defense must be stricken. Essentially, the banks make blanket statements that the defendants affirmative defenses are legally conclusive and are unsupported by any specific facts. The problem is, this tactic is slowly shifting the burden of proof from the Plaintiff and placing it on the Defendant’s shoulders. i.e. requiring the Defendant to disprove the case and NOT forcing the Plaintiff to prove their case, which is clearly the well established standard. As stated, the law governing these types of motions, both case law and statutory, is very clear.
Florida Rule of Civil Procedure § 1.140(f) states in penitent part, “a party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” Thus, unless the affirmative defense has been duplicated multiple times, which often times they are not, then these defenses are not redundant. Additionally, almost never will an affirmative defense be immaterial or impertinent. Lastly, I have never witnessed a bank’s attorney argue that the Defendant’s affirmative defense is scandalous. So, you may be wondering, if the banks do not argue one of the four scenarios as outlined in Rule 1.140 when moving to strike our defenses, then how can they possibly argue that these defenses should be stricken? As stated in the aforementioned paragraph, they try to contort the law which outlines the standard and misguide the court into shifting the burden on the Defendant by asserting that each defense is insufficiently supported by specific factual detail. To that sentiment I rebut, how can the defendant possibly raise every fact needed to conclusively prove their Affirmative Defense if discovery is still pending? Hence, if discovery, the tool parties use to collect material facts, is incomplete, then how could we possibly have all the facts necessary to carry the misplaced burden asserted by Plaintiff? The answer is, we cannot. With regards to a Motion to Strike, the courts have clearly spoken and have asserted that the proper standard to follow when deciding on whether to strike the affirmative defense is whether the defense is “legally sufficient on its face”. Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fla. 4th DCA 1976). Case law asserts that when a lawsuit is first filed and discovery is still ongoing, the purpose of each affirmative defense is to clearly identify what the Defendant intends to prove, not what they must prove at the time of filing their Answer. Another case which illustrates this notion is Zito v. Washington Federal Sav. & Loan Asso., 318 So. 2d 175 (Fla. 3d DCA 1975). That appellate court stated in pertinent part, “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.” Continuing on, Gonzalez v. NAFH Nat’l Bank, 93 So. 3d 1054 (Fla. 3d DCA 2012) states, “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.” “A motion to strike a defense tests only the legal sufficiency of the defense.” Burns v. Equilease Corp., 357 So. 2d 786, 787 (Fla. 3d DCA 1978). “Where . . . a defense is legally sufficient on its face and presents a bona fide issue of fact, it is improper to grant a motion to strike.” Hulley v. Cape Kennedy Leasing Corp., 376 So. 2d 884, 885 (Fla. 5th DCA 1979) (citations omitted); Citizens & S. Realty Investors v. Lastition, 332 So. 2d 357, 358 (Fl. 4th DCA 1976) (reversing an order striking an affirmative defense where “[t]he defense was legally sufficient upon its face and, as reflected, there were evident, bona fide and critical issues of fact . . . created”); Pentecostal Holiness Church, Inc. v. Mauney, 270 So. 2d 762, 769 (Fla. 4th DCA 1972) (finding that a Rule 1.140(f) motion to strike “should only be granted if material is wholly irrelevant, can have no bearing on the equities and no influence on the decision”). An affirmative defense may not be stricken “merely because it appears to a judge that the defendant may be unable to produce evidence at trial to sustain such a defense.” Bay Colony Office Bldg. Joint Venture v. Wachovia Mortgage Co., 342 So. 2d 1005, 1006 (Fla. 4th DCA 1977).”
Based on the clear reading of the law, when discovery is still ongoing, as is the case virtually every time an Answer is filed, the Defendant does not have to prove and assert every specific material fact in support of their defense in order to avoid having their argument stricken. It is the Plaintiff that must prove the Affirmative Defense is legally insufficient on its face, not the other way around. If you were unfamiliar with this type of motion and how it should be argued, it is imperative that you call our our experienced and aggressive foreclosure defense team here at The Freedom Law Firm. Call us now, any time, day or night! 407-883-2618 FREE CONSULTATIONS!