DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•10 S. WACKER DRIVE, SUITE 2300•CHICAGO, ILLINOIS 60606

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

LAFAYETTE DIVISION

ANTHONY G. TAYLOR,

Plaintiff,

v.

J P MORGAN CHASE,

CHASE HOME FINANCE

Defendant.

Civil Action No. 4:16-cv-00052-JTM-JEM

Honorable Judge James T. Moody

Magistrate Judge John E. Martin

DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION FOR LEAVE TO FILE FIRST

AMENDED ANSWER AND AFFIRMATIVE DEFENSES

JPMorgan Chase Bank, N.A., (“Chase”), incorrectly sued here as J P Morgan Chase and

Chase Home Finance, by and through its attorneys, Dykema Gossett PLLC, and in support of its

Motion for Leave to File a First Amended Answer and Affirmative Defenses pursuant to Fed. R.

Civ. P. 15(a), states as follows:

Procedural History

Chase filed its Motion for Leave to File a First Amended Answer and Affirmative

Defenses (“Motion for Leave”) on September 21, 2016. See Doc. No. 13. Before the Court

ruled on the Motion for Leave, Plaintiff filed a Motion to Strike Chase’s Affirmative Defenses.

See Doc. No. 18. On October 12, 2016, the Court, sua sponte, struck Plaintiff’s Motion to

Strike, and designated Plaintiff’s Second Motion to Strike as a Response to Chase’s Motion for

Leave. See Doc. No. 19. The Court granted Chase leave to file a Reply. Id. Chase now files a

Reply in Support of its Motion for Leave.

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•10 S. WACKER DRIVE, SUITE 2300•CHICAGO, ILLINOIS 60606

Argument

Chase’s Motion for Leave should be granted. It remains undisputed that under Fed. R.

Civ. P. 15(a), a court “should freely give leave when justice so requires” and that leave should be

granted in the absence of a good reason to the contrary. Foman v. Davis, 371 U.S. 178, 182

(1962). Plaintiff’s response to Chase’s Motion for Leave is devoid of any such argument,

including any argument that the particularized exceptions, such as undue delay, bad faith or

dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments

previously allowed, undue prejudice to the opposing party by virtue of allowance of the

amendment, futility of amendment, etc., are present. Id. This is because none of the

particularized exceptions apply here. Specifically, there is no undue delay, bad faith, dilatory

motive, or undue prejudice by virtue of allowing the amendment, especially considering that

discovery has not even commenced, there has been no Fed. R. Civ. P. 26(f) conference, no Fed.

R. Civ. P. 16 scheduling conference has been set, no scheduling order has been entered to date

setting forth a discovery deadline. In addition, the proposed affirmative defenses are not futile

but are a result of Chase’s continued investigation of Plaintiff’s allegations. All of which

Plaintiff will have ample opportunity to conduct discovery on Chase’s proposed First Amended

Answer and Affirmative Defenses.

Rather than addressing the standard for granting leave to amend, Plaintiff’s response

challenges Chase’s proposed affirmative defense themselves, requesting that they be stricken.

However, Plaintiff ignores the applicable law in this jurisdiction. Motions to strike are generally

disfavored and are stricken “only when they are insufficient on the face of the pleadings.” Cottle

v. Falcon Holdings Mgmt., LLC, 2012 U.S. Dist. LEXIS 10478, at *2 (N.D. Ind. Jan. 30, 2012)

(internal quotations omitted). Contrary to Plaintiff’s argument (at p. 3), this jurisdiction has

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•10 S. WACKER DRIVE, SUITE 2300•CHICAGO, ILLINOIS 60606

declined to apply the “plausibility standard of Iqbal and Twombly” to affirmative defenses.

Cottle, U.S. Dist. LEXIS 10478 at *5 (N.D. Ind. Jan. 30, 2012) (citations omitted). The Cottle

court reasoned that “requiring a more detailed factual pleading of affirmative defenses than is

already required would likely shift the nature of federal civil practice and may increase motion

practice related to affirmative defenses.” Id. (citations omitted). In Cottle, the court ultimately

declined to strike several affirmative defenses because the affirmative defenses were premised on

the plaintiff’s own allegations contained in her complaint and the details supporting the

affirmative defense could be developed through discovery. Id. at *15-16.

Notwithstanding the fact that the liberal standard for granting leave to amend has been

met, supra, Chase’s proposed affirmative defenses are properly pled. Indeed, Chase’s proposed

affirmative defenses put Plaintiff on notice of its defenses (see Ex. A to Motion for Leave), are

based on Plaintiff’s allegations contained in the Complaint, including that Plaintiff failed to

comply with Home Affordable Modification Trial Period Plan (see Doc. No. 2, at ¶¶ 14, 27; see

also Exhibit A to Plaintiff’s Complaint); that Plaintiff’s claims are barred by res judicata or

collateral estoppel as he was involved in a prior settlement and lawsuit regarding HAMP

modifications (see Id. at ¶¶ 43, 55); that Plaintiff’s claims are barred by applicable statute of

limitations as they arise from allegations stemming from 2009-2010 (see Id. at ¶¶ 10, 37); that

Plaintiff’s claims are barred by his failure to mitigate his damages and/or were caused by his own

omissions, actions, and/or inaction (see Id. at ¶¶27, 65, and conclusion alleging Plaintiff suffered

$548,000 in damages), and may be developed through the course of discovery.

Considering the liberal standard and policy favoring the amendment of a pleading,

Chase’s Motion for Leave should be granted.

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•10 S. WACKER DRIVE, SUITE 2300•CHICAGO, ILLINOIS 60606

WHEREFORE, Chase respectfully requests that this Court grant its Motion For Leave,

enter an order allowing Chase to file the proposed First Amended Answer and Affirmative

Defenses attached as Ex. A to Chase’s Motion For Leave, and grant any other relief that this

Court deems just and appropriate.

Dated: October 18, 2016

Jordan S. Huttenlocker

jhuttenlocker@dykema.com

Dykema Gossett PLLC

10 South Wacker Drive

Suite 2300

Chicago, IL 60606

Telephone: (312) 627-2281

Fax: (866) 804-1181

Respectfully submitted,

JPMORGAN CHASE BANK, NA

By: s/ Jordan S. Huttenlocker

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DYKEMA GOSSETT•A PROFESSIONAL LIMITED LIABILITY COMPANY•10 S. WACKER DRIVE, SUITE 2300•CHICAGO, ILLINOIS 60606

CERTIFICATE OF SERVICE

I certify that the foregoing was served on the following by the Court’s ECF system and

via U.S. Mail on this 18th day of October, 2016.

Anthony G. Taylor

1212 South 21st Street

Lafayette, IN 47905

s/ Jordan S. Huttenlocker

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