The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BICH THI HO CIVIL ACTION
VERSUS No. 23-5618
JEFFERSON FINANCIAL SECTION I
FEDERAL CREDIT UNION
ORDER & REASONS
Before the Court is plaintiff Bich Thi Ho’s (“plaintiff”) motion1 to strike sections
of defendant Jefferson Financial Federal Credit Union’s (“defendant”) answer.
Defendant opposes2 the motion. For the reasons set forth below, the Court grants the
motion in part and denies it in part.
I. BACKGROUND
This matter arises from a loan that defendant made to plaintiff’s now-deceased
former husband, Kiet Van Do (“Do”).3 On January 12, 2018, defendant allegedly
executed a loan to Do secured by Do’s residence.4 The loan was allegedly obtained to
permit Do to refinance the mortgage on his residence and pay off his tax liability.5 Do
lived in one side of his residence and leased the other side to a commercial hair salon.6
Following Do’s death, defendant claims that Do’s sole heir, A.D., is liable for the debts
of Do up to the value of the inherited property.7
1 R. Doc. No. 14.
2 R. Doc. No. 16.
3 R. Doc. No. 1, ¶ 2.
4 Id.
5 Id. ¶¶ 35, 37.
6 Id. ¶ 54.
7 R. Doc. No. 10-1, at 1.
In her complaint, plaintiff alleges that the loan is “demonstrably fraudulent
and predatory.”8 Plaintiff asserts claims against defendant pursuant to the Real
Estate Settlement Procedures Act (“RESPA”), the Truth in Lending Act (“TILA”), the
Louisiana Racketeering Act, and the Louisiana Civil Code.9
In her motion, plaintiff moves to strike paragraphs 2, 3, 11, 12, 16, 17, 20, 21,
22, 23, 24, 25, 27, 28, 29, 30, 31, 33, 35, 36, 37, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50,
51, 54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77,
78, and 79 of defendant’s answer for failing to state legally sufficient defenses.10
Plaintiff also moves to strike defendant’s affirmative defenses and counterclaim
because plaintiff argues that “they lack the necessary factual allegations and legal
justifications.”11 Plaintiff also argues that, because defendant did not respond to
paragraph 71 of the complaint, that paragraph should be deemed admitted.12
In response, defendant argues that “[t]he defenses alleged in this matter are
well founded, and should not be stricken.”13 Defendant also explained that “[u]nless
defendant knew the facts alleged [through] its own knowledge, or agreed to the
allegation, it denied [the allegation] in its answer.”14
8 R. Doc. No. 1, ¶ 4.
9 See generally id.
10 R. Doc. No. 14, at 1.
11 Id.
12 Id.
13 R. Doc. No. 16, at 1.
14 Id. at 2.
II. STANDARD OF LAW
Rule 12(f) permits a court to strike “from any pleading an insufficient defense
or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P.
12(f). “[M]otions to strike are viewed with disfavor and infrequently granted.” Ross v.
Dejarnetti, 514 F. Supp. 3d 845, 850 (E.D. La. 2021) (Brown, J.) (citing Augustus v.
Board of Public Instruction of Escambia, Fla., 306 F.2d 862, 868 (5th Cir. 1962)).
“Although motions to strike a defense are generally disfavored, a Rule 12(f) motion to
dismiss a defense is proper when the defense is insufficient as a matter of law.” Kaiser
Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th
Cir. 1982). “The action of striking a pleading ‘should be sparingly used by courts’
because ‘it is a drastic remedy to be resorted to only when required for the purposes
of justice.’” In re Chinese Manufactured Drywall Prod. Liab. Litig., 680 F. Supp. 2d
780, 788 (E.D. La. 2010) (Fallon, J.) (quoting Augustus, 306 F.2d at 868).
“Additionally, the moving party must generally make a showing of prejudice before a
motion to strike is granted.” Diesel Specialists, L.L.C. v. MOHAWK TRAVELER M/V,
No. 09-2843, 2011 WL 4063350, at *2 (E.D. La. Sept. 13, 2011) (Engelhardt, J.).
III. ANALYSIS
Plaintiff argues that defendant’s responses are without merit.15 Defendant
explained that it denied paragraphs of the complaint of which it had no personal
knowledge.16 Plaintiff has not demonstrated that any just reason for striking these
15 R. Doc. No. 14-2, at 2.
16 R. Doc. No. 16, at 2.
responses exists. Additionally, plaintiff has not demonstrated that she will be
prejudiced if the motion to strike is not granted. Therefore, the Court will deny
plaintiff’s motion to strike with respect to paragraphs 2, 3, 11, 12, 16, 17, 20, 21, 22,
23, 24, 25, 27, 28, 29, 30, 31, 33, 35, 36, 37, 40, 41, 43, 44, 45, 46, 47, 48, 49, 50, 51,
54, 55, 56, 57, 58, 59, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 72, 73, 74, 75, 76, 77, 78,
and 79 of defendant’s answer.
Plaintiff also seeks to strike defendant’s three affirmative defenses. First,
plaintiff argues that defendant’s statute of limitations defense is not sufficient as it
only addresses two of plaintiff’s claims.17 Plaintiff cites no authority for the
suggestion that an affirmative defense must apply to all claims, and the Court finds
this argument to be without merit.
Next, plaintiff argues that defendant’s affirmative defense of good faith should
be stricken because it is conclusory.18 In response, defendant claims that the defense
is “shown by the acts alleged by plaintiff.”19 Again, plaintiff has not demonstrated
that defendant’s affirmative defense is insufficient, redundant, immaterial,
impertinent, or scandalous. Additionally, plaintiff “has not . . . demonstrated that the
denial of her motion to strike would be prejudicial to her, and the Court is unable to
conclude that prejudice would result from not striking the affirmative defenses.” See
Abene v. Jaybar, LLC, 802 F. Supp. 2d 716, 724 (E.D. La. 2011) (Fallon, J.).
17 R. Doc. No. 14-2, at 19.
18 Id.
19 R. Doc. No. 16, at 3.
Third, plaintiff argues that defendant’s last affirmative defense involves a
factual dispute regarding whether the loan is a consumer or a personal loan and
should be stricken.20 In a previous order, the Court addressed how RESPA and TILA
apply to personal loans.21 By asserting that the loans are commercial, not personal,
defendant’s answer claims that RESPA and TILA do not provide plaintiff with a cause
of action. Plaintiff has not shown that this defense is insufficient as a matter of law
or that the defense is redundant, immaterial, impertinent, or scandalous. See Fed. R.
Civ. P. 12(f); see also Kaiser Aluminum & Chem. Sales, 677 F.2d at 1057. Plaintiff
also has not demonstrated prejudice will result if the motion to strike is denied.
Therefore, the Court will deny the motion to strike with respect to this affirmative
defense.
Plaintiff also asks the Court to strike defendant’s counterclaim because the
claims are “unclear and insufficient, citing no codal, statutory, or jurisprudential
authority.”22 In response, defendant argues that the counterclaim is based on the
facts alleged by plaintiff.23 Again, plaintiff has not alleged any prejudice that will
occur to her through the denial of her motion to strike, and therefore the drastic
remedy of striking is inappropriate.
Finally, plaintiff requests that the Court deem paragraph 71 of the complaint
as admitted because defendant’s answer did not deny it.24 Paragraph 71 includes a
20 R. Doc. No. 14-2, at 19.
21 R. Doc. No. 18, at 7.
22 R. Doc. No. 14-2, at 19.
23 R. Doc. No. 16, at 3.
24 R. Doc. No. 14, at 1.
bank receipt image and provides: “Similarly, contrary to the ‘Verification of
Mortgage,’ the bank receipt shows the February 1, 2021, payment with the due date
of March 1, 2021.”25 Defendant did not respond to this paragraph in its answer or
respond to the request for admission in its response to the motion to strike.26 Federal
Rule of Civil Procedure 8(b)(6) provides that “[a]n allegation—other than one relating
to the amount of damages—is admitted if a responsive pleading is required and the
allegation is not denied.” Therefore, because defendant did not respond to the
allegations in paragraph 71, that paragraph is deemed admitted.
IV. CONCLUSION
Accordingly,
IT IS ORDERED that plaintiffs motion is GRANTED IN PART and
DENIED IN PART. The motion is GRANTED to the extent it seeks to have
paragraph 71 of the plaintiff's complaint be deemed admitted. The motion is
DENIED to the extent it seeks to strike portions of defendant’s answer.
New Orleans, Louisiana, February 8, 2024.
hn
Sire
UNITED STATES DISTRICT JUDGE
25 R. Doc. No. 1, 4.
26 See R. Doc. Nos. 9, 16.