Opinion
No. 01 C 8988
December 28, 2001
MEMORANDUM ORDER
As a claimed junior lienholder and hence an additional defendant in this mortgage foreclosure action, the United States has just filed its Answer to the Complaint brought by first mortgagee Washington Mutual Bank, as successor by merger to Bank United, FSB. This memorandum order is issued sua sponte to require government counsel to cure that pleading's noncompliance with the requirements of the Federal Rules of Civil Procedure ("Rules")
Rule 8(b)'s second sentence prescribes an express form of disclaimer necessary to entitle a defendant to the benefit of a deemed denial — see App. ¶ 1 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 279 (N.D. Ill. 2001). Because Answer ¶¶ 1 and 3 depart from that formulation in a material way, they are stricken with leave to replead.
While government counsel returns to the drawing board, it would be well for him to retrame the prayer for relief that seeks adjudication of the United States' claimed lien. Even though mortgage foreclosure practice tends to follow the more traditional forms employed in the state courts that handle the bulk of such practice, what the United States is really advancing is a cross-claim against the mortgagors under Rule 13(g).
Finally, the Answer as filed fails to conform to the dictate of this District Court's LR 10.1. Because that may perhaps be less serious in the simple type of action that is exemplified by a mortgage foreclosure proceeding, this Court will not insist on such compliance in the Amended Answer — but it should nonetheless be said that rules are rules and ought to be treated as such.
In any event, the Answer is stricken in its entirety so that a self-contained Amended Answer may be filed. Leave is granted to do so on or before January 11, 2002.