Opinion
No. 04 C 5987.
October 26, 2004
MEMORANDUM ORDER
Ameriquest Mortgage Company ("Ameriquest") has filed its Answer to the Truth in Lending Act Complaint brought against it and possibly some unidentified "John Doe" defendants by Sandra Bell ("Bell"). This memorandum order is issued sua sponte because of two problems posed by the responsive pleading (this memorandum order does not fully address any possible difficulties that may exist with Ameriquest's affirmative defenses ("ADs"), a matter that will be left to the attention of Bell's counsel).
Although Bell has referred to "John Does 1-5" in the case caption and in Complaint ¶ 7, nothing to this point suggests that any person other than Ameriquest "claim[s] an interest in plaintiff's mortgage loan" (id.).
First, despite the clear language of the second sentence of Fed.R.Civ.P. ("Rule") 8(b), Ameriquest's counsel are numbered among the lawyers who inexplicably depart from the terms of the disclaimer required by that Rule — see App. ¶ 1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001). Accordingly Answer ¶¶ 1, 3, 5, 7 and 8 are stricken, but with leave being granted to Ameriquest to file an appropriate amendment to the Answer in this Court's chambers (with a copy of course being contemporaneously transmitted to Bell's counsel) on or before November 8, 2004.
Second, Answer ¶¶ 10 and 14 are also problematic, in this instance because counsel's use of the locution "to the extent" leaves this Court (as well as Bell's counsel, of course) totally uncertain as to what portion of the corresponding Complaint allegations are being admitted and what portions are being denied by Ameriquest. In that respect the responses fail to conform to the mandate of the first sentence of Rule 8(b). Those paragraphs of the Answer are accordingly stricken as well, with leave being granted to provide proper responses as part of the amendment to the Answer already called for.
Finally, the parties are expected to address at the initial status hearing (previously ordered to be held at 9 a.m. November 2, 2004) these matters raised by the ADs included as part of the Answer:
1. Bell's counsel will be required to speak to the limitations issue identified in AD 1 regarding her claim for statutory damages, costs and attorney's fees.
2. Apart from that issue, Ameriquest's counsel will be expected to identify why AD 3 — a challenge that corresponds to Rule 12(b) (6) — is assertedly sustainable.
3. Bell's counsel will also be expected to speak to whether AD 4 is or is not an accurate statement as to her obligations if the remedy of rescission proves to be available to her.