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Res-Mo Springfield, LLC v. Tuscany Properties, LLC

United States District Court, Tenth Circuit

August 5, 2013

RES-MO SPRINGFIELD, LLC, Plaintiff,
v.
TUSCANY PROPERTIES, L.L.C., et al., Defendants.

MEMORANDUM AND ORDER

DAVID J. WAXSE, Magistrate Judge.

Pending before the Court is Plaintiff's Motion to Strike Affirmative Defenses (ECF No. 11) and Memorandum in Support (ECF No. 12). Plaintiff, RES-MO Springfield, LLC, ("RES-MO") asks the Court to strike certain affirmative defenses in the Answer (ECF No. 9) filed by Defendants Tuscany Properties, LLC ("Tuscany"), Donna S. Blake, Brent T. Blake, and Cypress Enterprises, Inc. (collectively "Defendants"). Defendants filed a Memorandum in Opposition (ECF No. 15) asking the Court to deny the Motion or, in the alternative, to allow them to amend their answer to provide additional notice of the bases for the affirmative defenses. Upon review, the Court concludes that the Motion should be denied.

I. Background

On April 10, 2013, RES-MO filed a Complaint (ECF No. 1) seeking to recover on a promissory note and to enforce guaranties. RES-MO claims that it is the successor in interest to a promissory note which was originally executed by Tuscany to Columbian Bank to fund the development of property in Cass County, Missouri. RES-MO also claims that Ms. Blake executed a commercial guaranty to Columbian Bank for Tuscany's indebtedness. Before RES-MO obtained the note, the Federal Deposit Insurance Corporation ("FDIC") held the note as receiver for Columbian Bank. Defendants admit in their answer that Ms. Blake executed a guaranty[1] but deny that RES-MO is entitled to any recovery and also assert the following affirmative defenses, which RES-MO now moves to strike:

...
2. Plaintiff lacks standing to file the captioned case and is not the real party in interest.
...
4. Plaintiff's claims are barred, in whole or in part, by waiver, estoppel, and/or laches.
5. Plaintiff failed to mitigate its alleged damages.
6. Requiring Donna S. Blake to execute the guaranty violates Regulation B of the Equal Credit Opportunity Act and, as a result, her guaranty is null and void.
7. The granting of Plaintiff's demand would result in unjust enrichment, as Plaintiff would receive more money than Plaintiff is entitled to receive.
8. The Complaint fails to allege whether or not the purported assignments were partial or complete, and there is no evidence that the purported assignments were bona fide.[2]

At this early stage of the proceedings, the parties have not yet ...


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