July 13, 2020

Volume X, Number 195

July 13, 2020

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Motion to Strike Granted - Court Strikes Down FCRA Affirmative Defense

In Cook v. Mt. Am. Fed. Credit Union, 2018 U.S. Dist. LEXIS 162234 (D. Az. September 20, 2018), Plaintiff Tyler Cook (“Plaintiff”) moved to strike defendant Mountain America Federal Credit Union’s answer to Plaintiff’s first amended complaint.  Most interestingly for FCRAland.com readers, Plaintiff specifically moved to strike an affirmative defense “assert[ing]  all protections and defenses set forth in Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.”

The Court, citing Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir. 2010), noted that an affirmative defense must give a plaintiff “fair notice of the defense being claimed.”  The Court found that simply narrowing a defense to those protections and defenses available under the FCRA failed to give the Plaintiff proper notice of what defenses were actually being claimed.  The affirmative defense was akin to claiming “all possible affirmative defenses.”  As such, the defense was stricken from the amended complaint.

Copyright © 2020 Womble Bond Dickinson (US) LLP All Rights Reserved.National Law Review, Volume VIII, Number 267


About this Author

John Hawk Attorney Womble Bond Litigator

John Hawk is a skilled litigator with over a decade of experience serving the complex and diverse litigation needs of Fortune 500 companies and smaller lenders. He focuses his practice on consumer finance, lender liability and insurance.

Specifically, John routinely defends cases brought pursuant to ERISA, FCRA, TCPA and FDCPA. His clients include life and disability insurance companies, banks and other lenders, and mortgage servicers.

John’s experience includes frequent appearances in state and federal courts, including the South Carolina Court of Appeals and the Supreme...