A consumer’s Fair Debt Collection Practices Act lawsuit will move forward with all seven of the defendant’s affirmative defenses intact after a District Court judge in Florida declined to strike any of them.
The background: The dispute grew out of a credit card debt that the plaintiff and the defendant, a debt buyer, had already settled before the current lawsuit ever began.
- Last year, the defendant sued the plaintiff to collect a consumer credit card debt. The parties resolved that suit when the plaintiff paid $863.17, and the case was dismissed in mid-January.
- In February, the defendant reported and updated its tradeline for the debt on the plaintiff’s credit report, listing it as actively due and owing, delinquent, and in collection.
- The plaintiff says that reporting hurt her ability to get a loan and caused her distress, frustration, and embarrassment.
- The plaintiff sued in state court under the FDCPA. The defendant removed the case to federal court and answered with seven affirmative defenses, all of which the plaintiff then moved to strike.
The ruling: Judge Virginia M. Hernandez Covington of the District Court for the Middle District of Florida, who noted that motions to strike are “considered ‘drastic’ and are disfavored by the courts,” denied the motion and left every defense in place, though she reclassified several of them.
- The judge agreed that the first and second defenses, which argued the complaint failed to state a claim, are not true affirmative defenses but general defenses. Rather than strike them, she chose to treat them as denials.
- The third defense, under the FDCPA’s bona fide error defense, survived under the ordinary pleading standard. The judge declined to apply a heightened standard and found the defendant had tied the defense to the specific allegation, writing that “verbosity is unnecessary when the circumstances are clear” and the plaintiff had fair notice of it.
- The fourth and fifth defenses, which pointed to third parties as the cause of any actual damages, were likewise recharacterized as denials that the defendant caused the harm, rather than struck.
- The sixth and seventh defenses drew the closest look. The defendant argued the plaintiff’s FDCPA claims were barred because she skipped the notice-and-cure step in the parties’ settlement agreement. Judge Covington would not call that frivolous, reasoning that a claim “relates to” a contract when “the dispute occurs as a fairly direct result of the performance of contractual duties,” and finding she could not yet say the agreement had “no possible relationship to the controversy.”
