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DEAN v. LIBERTY FUNDING SERVICES
March 31, 2003
THOMAS SCOTT DEAN, PLAINTIFF,
LIBERTY FUNDING SERVICES, INC., AND WELLS FARGO HOME MORTGAGE, INC., DEFENDANTS.
The opinion of the court was delivered by: Milton I. Shadur, Senior United States District Judge.
Liberty Funding Services, Inc., ("Liberty") has filed its Answer and Affirmative Defenses ("ADs") to the Truth in Lending Act and consumer fraud action brought against it and Wells Fargo Home Mortgage, Inc. by Thomas Dean ("Dean"). This memorandum order is issued sua sponte to require the correction of some obvious flaws in that responsive pleading.
It appears that Liberty's counsel are numbered among the distressingly substantial cadre of lawyers who either do not read or who, having read, choose to ignore certain directives set out in the Federal Rules of Civil Procedure ("Rules"). Thus Answer ¶¶ 2, 3, 5, 7 and 10 fail to conform to the representations that are expressly required of any pleader who seeks the benefit of a deemed denial under the second sentence of Rule 8(b) — see App. ¶ 2. to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D.Ill. 2001). All of those paragraphs are stricken.
In addition, all four of Liberty's ADs are flawed. Here are their patent defects:
1. AD1, advanced as the equivalent of a Rule
12(b)(6) motion, is simply wrong. Apart from its
misuse of the term "cause of action" in place of the
proper federal term "claim," it is clear that if
Dean's allegations are accepted as true (as they must
be for this purpose) he is entitled to stay in court.
2. All of ADs 2, 3 and 4 violate the concept
embodied in Rule 8(c) and its interpretative case
law, for Liberty's assertions are at war with the
allegations of the Complaint (see particularly
Complaint ¶ 29, which alleges that "Liberty's
conduct was dishonest and malicious"). In that
respect, see App. ¶ 5 to State Farm.
To avoid a patchwork of pleading, Liberty's Answer and ADs are stricken in their entirety. Leave is of course granted to Liberty's counsel to file a self-contained Amended Answer (including any permissible ADs) in this Court's chambers (with a copy being transmitted to Dean's counsel) on or before April 15, 2003, failing which the allegations of Dean's Complaint corresponding to the stricken paragraphs of the Answer will be deemed admitted and all ADs will remain stricken.
Finally, Liberty's counsel cannot reasonably expect their client to pay for their errors. They are ordered (1) to make no charge for their time spent or the out-of-pocket expenditures incurred in connection with the replacement pleading, (2) to advise the client of that fact by letter and (3) to send a copy of that letter to this Court (purely for information, not for filing).
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