Federal Nat. Mortg. Ass'n v. Cobb

• Decision Date: 01 June 1990
• Docket Number: Civ. No. H87-358.
• Citation: 738 F. Supp. 1220
• Parties: FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, v. Michael Ray COBB, et al., Defendants. Diana McCULLARS n/k/a Diana A. Masterson, Cross-Complainant/Counterclaimant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Washington, District of Columbia, Counterdefendant. Jane KICINSKI, Cross-Complainant/Counterclaimant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, WASHINGTON, DISTRICT OF COLUMBIA, Counterdefendant.
• Court: U.S. District Court — Northern District of Indiana

738 F. Supp. 1220

FEDERAL NATIONAL MORTGAGE ASSOCIATION, Plaintiff, v. Michael Ray COBB, et al., Defendants.

Diana McCULLARS n/k/a Diana A. Masterson, Cross-Complainant/Counterclaimant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Washington, District of Columbia, Counterdefendant.

Jane KICINSKI, Cross-Complainant/Counterclaimant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, WASHINGTON, DISTRICT OF COLUMBIA, Counterdefendant.

Civ. No. H87-358.

United States District Court, N.D. Indiana, Hammond Division.

June 1, 1990.

COPYRIGHT MATERIAL OMITTED

Murray Feiwell, Feiwell & Associates, Indianapolis, Ind., Stephen R. Place, Lucas, Holcomb & Medrea, Merrillville, Ind., for plaintiff.

Diana McCullars n/k/a Diana A. Masterson, Jane Kicinski, Gary, Ind., for defendants.

ORDER

LOZANO, District Judge.

This matter is before the court on the plaintiff's Motion to Strike Cross-Complaint/Counterclaim, filed August 31, 1987, by the plaintiff-counterdefendant, Federal National Mortgage Association (hereinafter referred to as "FNMA"). The following motions are also before this court: The Motion to Dismiss, filed September 21, 1987, by FNMA; the Motion to Strike, filed September 22, 1987, by the defendant-counterclaimant, Jane Kicinski (hereinafter referred to as "Kicinski"); and the Motion for Summary Judgment filed January 13, 1988, by FNMA.

For the reasons set forth herein, FNMA's Motion to Strike is DENIED; FNMA's Motion to Dismiss is GRANTED in part and DENIED in part; Kicinski's Motion to Strike is DENIED; and FNMA's Motion for Summary Judgment is DENIED. Additionally, the court, sua sponte, ORDERS that Section D, Allegation 1 and Section E, Allegation 1 of the Cross-Complaint/Counterclaim filed by defendant-counterclaimant, Diana McCullars n/k/a Diana A. Masterson's (hereinafter referred to as "McCullars"), be STRICKEN FROM THE RECORD, as these provisions are immaterial to these proceedings. Similarly, the portion of Kicinski's Cross-Complaint/Counterclaim entitled Section D, Allegation 2, which incorporates Allegation 1 of McCullars' Cross-Complaint/Counterclaim, by reference, is also ORDERED STRICKEN FROM THE RECORD, as it is also immaterial to the proceedings.

BACKGROUND

Defendants, Michael Ray Cobb and Sandra J. Cobb (hereinafter collectively referred to as "the Cobbs") gave Great Lakes Mortgage Corporation (hereinafter referred to as "Great Lakes") a purchase money mortgage to secure a promissory note dated June 16, 1978. This mortgage was recorded in the Office of the Recorder of Lake County, Indiana (hereinafter referred to as "Lake County") on July 5, 1978. On June 27, 1978, Great Lakes assigned the Cobbs' promissory note and mortgage to FNMA. FNMA recorded the assignment of the note and mortgage in Lake County on July 5, 1978.

The Cobbs' conveyed the real estate subject to the mortgage assigned to and recorded by FNMA, to defendants, McCullars and Kicinski, by warranty deed dated August 25, 1980. McCullars and Kicinski purchased the Cobbs' real estate subject to FNMA's mortgage, which McCullars and Kicinski assumed and agreed to pay. FNMA contends that McCullars and Kicinski made their last payment to FNMA "for the payment due on August 1, 1986." No further payments have been made.

On June 12, 1987, FNMA filed this action to foreclose the mortgage on the real estate now held by McCullars and Kicinski. As of June 12, 1987, $26,430.16 remained due and payable on the note for which the mortgage was given as security. This note provides that upon default in the payment of any installment of principal or interest, the legal holder of the note may, at his option, declare the unpaid principal and interest immediately due and payable. FNMA has exercised that option.

FNMA seeks a declaration that its mortgage is the first priority lien on the real estate. The foreclosure of the mortgage, the sale of the real estate, and the application of the proceeds of the sale first to the costs of the sale, then to FNMA's claim, and finally to any other debts defendants, the Cobbs, McCullars, and Kicinski owe. FNMA has joined Montgomery Ward & Company (hereinafter referred to as "Montgomery Ward") as a party-defendant because Montgomery Ward obtained a small claims court judgment against McCullars on June 16, 1982, and may have an interest in the mortgaged real estate. FNMA asks that the proceeds of the sale of the real estate, if sufficient to satisfy FNMA's claim, attorneys' fees, costs, and interest, be applied lastly to Montgomery Ward's claim, if any.

On July 16, 1987, McCullars, pro se, filed her answer, a demand for a jury trial, and a Cross-Complaint/Counterclaim, naming only FNMA as "respondent-plaintiff." McCullars' Cross-Complaint/Counterclaim contains three barely coherent allegations. The first allegation is directed at "Dan Barrick & Barrick Realty Co.," the realtor involved in McCullars' purchase from the Cobbs of mortgaged real estate which is at the center of this dispute. McCullars' dispute with Barrick concerns an alleged violation of Barrick's agreement to repair the roof of the residence on the mortgaged premises which McCullars and Kicinski purchased from the Cobbs. The second allegation contains charges against FNMA of various due process, antitrust, civil rights, contract, and constitutional violations before having commenced this lawsuit. By her second allegation, McCullars contends that she made "good faith payments" and that she had "called to find out where she could send her monies to update her account and was refused direction therefore by counsel of FNMA."

FNMA moved that McCullars be ordered to file a more definite statement with respect to the Cross-Complaint/Counterclaim, and, on August 14, 1987, this court, by the Honorable James T. Moody, ordered McCullars to do so. On August 24, 1987, McCullars, in what appears to be an attempt to comply with this court's order, filed what has been entitled "Response to Motion and Order."

On August 26, 1987, Kicinski, pro se, filed her "Appearance" and "Answer" which is a general denial of all of the allegations in FNMA's Complaint, and her own "Cross-Complaint/Counterclaim." Kicinski's Cross-Complaint/Counterclaim contains three barely coherent allegations. First, Kicinski alleges that Judge Moody "appears as assistant counsel for FNMA;" second, Kicinski adopts allegations one and two from McCullars' Cross-Complaint/Counterclaim; and, third, Kicinski alleges that the "original contract" between Kicinski, McCullars, and FNMA, was altered and voided by subsequent oral agreement and in accepted practice of "open-ended contractual time of payments." Kicinski also alleges that FNMA failed to adequately serve her with notice of process, and that FNMA has violated her "civil rights, constitutional rights, and privileges and immunities addressed and duly secured by the Constitution of the United States of America."

FNMA responded by filing a Motion to Strike McCullars' Cross-Complaint/Counterclaim for failure to comply with this court's Order to file a more definite statement, and a Rule 12(b)(6) Motion to Dismiss Kicinski's Cross-Complaint/Counterclaim for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). As a result, Kicinski filed a Motion to Strike FNMA's Motion to Dismiss her Cross-Complaint/Counterclaim, on September 22, 1987.

Following the entry on December 8, 1987, of a clerk's entry of default against the Cobbs and Montgomery Ward, FNMA moved for summary judgment on January 13, 1988. McCullars and Kicinski opposed summary judgment and demanded trial by jury on all issues.

DISCUSSION

FNMA's Motion to Strike McCullars' Cross-Complaint/Counterclaim

Rule 12(f) of the Federal Rules of Civil Procedure provides that:

Upon motion made by a party before responding to a pleading or, if no responsive pleading is permitted by these rules, upon motion made by a party within 20 days after the service of the pleading upon the party or upon the court's own initiative at any time, the court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Fed.R.Civ.P. 12(f). A motion under this rule to strike portions of a responsive pleading serves the limited purpose of excluding irrelevant material from pending litigation. Donovan v. Robbins, 99 F.R.D. 593, 596 (N.D.Ill.1983), rev'd on other grounds, 752 F.2d 1170 (7th Cir.1984). Issues raised in a responsive pleading which are irrelevant to a cause of action need not be allowed to complicate and impede the progress of pretrial discovery. Id. "Vague allegations that seek to raise defense of dubious legal merit are subject to being stricken for `indefiniteness'." Id. (citing U.S. v. 416.81 Acres of Land, 514 F.2d 627, 629-32 (7th Cir.1975)). Given the purpose of this rule, the court may strike a matter from a pleading on its own initiative where doing so advances the progress of litigation. Fed.R.Civ.P. 12(f); U.S. v. 416.81 Acres of Land, 514 F.2d at 629-32.

While the purpose of this rule is to expedite the administration of justice, a motion to strike is not a favored motion, as it proposes a drastic remedy. U.S. v. 416.81 Acres of Land, 514 F.2d at 629-32; Mudd v. Busse, 68 F.R.D. 522, 532 (N.D. Ind.1975), motion reconsidered, 437 F.Supp. 505 (N.D.Ind.), aff'd, 582 F.2d 1283 (7th Cir.1978), cert. denied, 439 U.S. 1078, 99 S.Ct. 858, 59 L.Ed.2d 47 (1979). In determining whether to grant a motion to strike, the court must treat all well-pleaded facts as admitted and cannot consider matters outside the pleadings. U.S. Oil Co., Inc. v. Koch Refining Co., 518 F.Supp. 957, 959 (D.Wis.1981). The paucity or prolixity of factual allegations is not necessarily grounds to strike a pleading, especially when it has been prepared by a pro se litigant untutored in the requirements of the federal procedural rules. Hanna v. Lane, 610 F.Supp. 32, 34 (N.D.Ill.1985). See also, Pain Prevention Lab v. Electronic Waveform Labs, ...