## Facts

- In 2008, Roy and Sheila Bowers executed a residential mortgage to secure repayment of a loan of approximately \$184,222.
- In 2009, Mortgage Electronic Registration Systems, Inc. (MERS) erroneously executed and recorded a certificate of satisfaction indicating the Bowerses’ mortgage had been released even though the debt had not been paid in full.
- About four months later, MERS recorded a corrective document (a “caveat” regarding an erroneous release) stating that the certificate of satisfaction was recorded in error and that the mortgage lien remained in effect; the corrective filing was signed by MERS officer Lorna Slaughter.
- The Bowerses sued MERS and Slaughter, asserting claims for slander/disparagement of title, conversion, negligence, fraud and/or misrepresentation, and violations of the Kansas Consumer Protection Act (and related statutory theories pleaded in the complaint).
- MERS answered, denied liability, and asserted 18 affirmative defenses, many stated in one-sentence, conclusory form (for example: “Plaintiffs’ claims for economic loss are barred by their contributory fault.”).
- The Bowerses moved under Federal Rule of Civil Procedure 12(f) to strike all affirmative defenses, arguing they were insufficient under Rule 8 and the pleading standard associated with *Bell Atlantic Corp. v. Twombly* and *Ashcroft v. Iqbal*.

## Issues

1. Whether Rule 8, as interpreted by *Twombly* and *Iqbal*, requires affirmative defenses to include enough factual matter to be plausible, rather than being pleaded as bare legal labels.
2. Whether MERS’s conclusory affirmative defenses should be stricken under Rule 12(f) as insufficiently pleaded.

## Decision

- The court held that the *Twombly/Iqbal* plausibility standard applies to affirmative defenses pleaded under Rule 8(b) and 8(c), not only to claims pleaded under Rule 8(a).
- The court granted the motion to strike in part and denied it in part, evaluating the defenses individually rather than striking them wholesale.
- The court struck several defenses that were pleaded as unsupported legal conclusions because they failed to give fair notice of the grounds for the defense.
- The court allowed certain defenses to remain where they were adequately stated given the pleadings, were primarily legal in nature, or otherwise were not shown to be insufficient as a matter of law at the pleading stage.
- The court permitted defendants to re-plead stricken defenses with additional factual support (i.e., without prejudice to amendment).

## Legal Principles

- Rule 8’s “short and plain” pleading requirement applies to defenses as well as claims; a defendant must do more than recite a defense’s name when the label alone does not provide fair notice.
- Under *Twombly* and *Iqbal*, a pleading must contain enough factual content to make the asserted matter plausible; conclusory statements and legal conclusions are not accepted as sufficient factual pleading.
- A Rule 12(f) motion is generally disfavored, but it is an appropriate tool to remove legally insufficient defenses and to reduce unnecessary expense tied to vague, boilerplate defenses.
- When an affirmative defense is asserted without any supporting facts and does not signal the basis on which it rests, a court may strike it and allow amendment rather than requiring the opposing party to use discovery simply to learn what the defense means.

## Conclusion

In *Bowers v. Mortgage Electronic Registration Systems*, the District of Kansas applied *Twombly/Iqbal* to affirmative defenses, striking several conclusory defenses under Rule 12(f) while leaving others intact and allowing defendants an opportunity to amend defenses that lacked sufficient factual support.


Bowers v. Mortgage Electronic Registration Systems, 2011 WL 2149423, No. 10 Civ. 4141 (2011)