Not an affirmative defense

Originally published by David Coale.

Fed. R. Civ. P. 8(c) requires parties to “affirmatively state any avoidance or affirmative defense.” Germain v. U.S. Bank applied that rule in a mortgage-servicing case, reasoning: “Germain alleged that the Defendants did not comply with § 1024.41. The Defendants denied this allegation, insisting that they had complied with that section. That is a denial or direct contradiction of Germain’s claim, not an affirmative defense. The Defendants did not expressly rely on § 1024.41(i) in their answer, but the use of § 1024.41(i) in their motion for summary judgment is merely an expansion of the denial in their answer.” No. 18-10508 (April 3, 2019). (“8c” also refers to an Alfa Romeo model, pictured above for general reference.)

 

 

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