Striking Affirmative Defenses in FCRA Cases: Insights from Silver v. Capital One
If you are litigating a Telephone Consumer Protection Act, Fair Debt Collection Practices Act, or Fair Credit Reporting Act lawsuit, you are likely familiar with the barrage of boilerplate affirmative defenses. Recently, Western District of Washington federal judge David G. Estudillo provided a significant opinion on how to challenge these defenses effectively. The case is Silver v. Capital One, N.A., No. 3:25-cv-05175-DGE, 2025 U.S. Dist. LEXIS 197614 (W.D. Wash. Oct. 6, 2025). Below, we will explore the court's rulings on various affirmative defenses raised by Capital One.
Background of the Case
Mr. Silver filed a lawsuit against Capital One, alleging violations of the Fair Credit Reporting Act. He claimed that Capital One failed to conduct a reasonable investigation or correct inaccuracies in his credit report. In response, Capital One submitted an answer that included 27 affirmative defenses. Mr. Silver moved to strike these defenses. Below, we will analyze the court's rulings on these defenses.
Analysis of Affirmative Defenses
1. Failure to State a Claim
The Ninth Circuit has established that failure to state a claim is not a valid affirmative defense. In Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002), the court clarified that this defense does not demonstrate an affirmative defense but rather challenges the sufficiency of the plaintiff's claims. Therefore, the court struck this defense without leave to amend.
2. Failure to Mitigate Damages
The court noted that distinguishing between an affirmative defense and a denial is crucial. The defense of failure to mitigate damages must provide specific facts supporting its applicability. The court found that Capital One's defense lacked sufficient detail and struck it with leave to amend.
3. Actions of Third Parties
The court examined whether Capital One provided fair notice regarding the actions of third parties that allegedly caused Mr. Silver's damages. The defense was struck due to its vagueness and lack of specifics.
4. Plaintiff's Own Conduct
Similar to the previous defense, Capital One's assertion that Mr. Silver's own conduct caused his damages was deemed insufficient. The court struck this defense for failing to provide adequate notice.
5. Compliance with the Fair Credit Reporting Act
Capital One claimed it acted in compliance with the Fair Credit Reporting Act. However, the court found that this defense did not provide fair notice and struck it with leave to amend.
6. Good Faith Actions
The court ruled that the defense asserting good faith actions did not negate the plaintiff's claims. Thus, it was struck without leave to amend.
7. Equitable Estoppel
The court found that Capital One failed to allege any facts supporting a defense of equitable estoppel. Therefore, this defense was struck with leave to amend.
8. Reasonable Procedures
The court acknowledged that maintaining reasonable procedures can serve as a valid defense under the Fair Credit Reporting Act. This defense was upheld.
9. Duplicative Defenses
Capital One's defense claiming compliance with state and federal laws was deemed duplicative and was struck without leave to amend.
10. Lack of Standing
The court reiterated that asserting a lack of standing is not a valid affirmative defense. Thus, this defense was also struck without leave to amend.
11. Unclean Hands
The court emphasized that simply alleging unclean hands without specific misconduct does not provide fair notice. This defense was struck with leave to amend.
12. Consent to Conduct
The court ruled that whether Mr. Silver consented to Capital One's conduct was irrelevant to the failure to investigate alleged inaccuracies. This defense was struck without leave to amend.
13. Malice and Intent
The court found that Capital One's assertion regarding malice was not a recognized affirmative defense under the Fair Credit Reporting Act. Consequently, this defense was struck without leave to amend.
14. Reservation of Rights
Finally, the court ruled that reserving the right to supplement affirmative defenses is not a valid defense. This was struck without leave to amend.
Conclusion
The ruling in Silver v. Capital One provides essential guidance for litigators facing boilerplate affirmative defenses. It highlights the importance of specificity and fair notice in affirmative defenses. By understanding these principles, plaintiffs can better navigate their cases and challenge vague defenses effectively.
And some bonus material on pleading a FCRA failure to investigate claim.
Along with the court's full opinion on striking the affirmative defenses.
Got a Case Like This?
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Note: The opinions in this blog are mine (Peter Schneider) and do not constitute legal advice. If you're considering suing over illegal robocalls or Do Not Call list violations, contact me for a legal consultation.
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