Jump To

Top Caption Trial Court Document The text of this document was obtained by analyzing a scanned document and may have typos.

Support FLP

CourtListener is a project of Free
Law Project, a federally-recognized 501(c)(3) non-profit. Members help support our work and get special access to features.

Please become a member today.

Join Free.law Now

March 27, 2026 Get Citation Alerts Download PDF Add Note

John Wise, Carol Wise, individually and as trustees for The Wise Revocable Trust v. Trevor Bradly Everett

United States Bankruptcy Court, D. Colorado

• Citations: None known
• Docket Number: 25-01342

• Precedential Status: Unknown Status

• Opinion

• Authorities (4)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

• PDF

Trial Court Document

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF COLORADO

Bankruptcy Judge Michael E. Romero

In re:

Bankruptcy Case No. 25-15860 MER

Trevor Bradly Everett,

Amy Jo Everett, Chapter 7

Debtors.

John Wise, Carol Wise, individually and

as trustees for The Wise Revocable Trust Adversary Proceeding No. 25-1342 MER
Agreement

Plaintiffs,

v.

Trevor Bradly Everett,

Defendant.

  ORDER GRANTING IN PART AND DENYING MOTION TO STRIKE                
THIS MATTER comes before the Court on the Motion to Strike Certain of 

Defendant’s Affirmative Defenses (“Motion to Strike”) filed by Plaintiffs John Wise and
Carol Wise, the response filed by Debtor-Defendant, Trevor Everett, and the Plaintiffs’
reply.1

BACKGROUND

According to the facts pled in the Plaintiffs’ Complaint, the Debtor is a general
contractor doing business through his two wholly owned companies. The Plaintiffs hired
the Debtor through his companies to build a home for them. Plaintiffs allege they paid
funds to Debtor for work done on their house, but Debtor did not use those funds to pay
vendors and subcontractors. Instead, Debtor allegedly used their funds for other,
unrelated expenses. Prior to the petition date, Plaintiffs sued the Debtor in state court.

That lawsuit was stayed when the Debtor filed for bankruptcy. The Plaintiffs’ Complaint
in this proceeding asserts claims against the Debtor under 11 U.S.C. § 523 (a)(2), (4),
and (6), as well as claims under the Colorado construction trust fund and civil theft
statutes.

1 ECF Nos. 11, 16, 17.

The Debtor filed an Answer and Affirmative Defenses to Complaint (“Answer”)
that contains 25 numbered “affirmative defenses.”2 Plaintiffs’ Motion to Strike argues
most of these affirmative defenses are deficient and should be stricken pursuant to Fed.
R. Civ. P. 12(f), made applicable to this proceeding by Fed. R. Bankr. P. 7012.3

DISCUSSION

A. Standard

Rule 12(f) permits a district court to strike from a pleading “any redundant,
immaterial, impertinent, or scandalous matter.”4 Motions to strike under Rule 12(f) are
viewed with disfavor because striking a portion of a pleading is a drastic remedy and
because such motions are often used as a dilatory or harassing tactic.5 Indeed, courts
have recognized that motions to strike defenses should only be granted if the
allegations have no bearing on the controversy and the movant can show prejudice.6 A
defense should not be stricken “if there is any real doubt” about its validity, and “the
benefit of any doubt should be given to the pleader.”7

Plaintiffs suggest that their Motion to Strike should be decided under the same
plausibility standards applicable to motions to dismiss claims under Rule 12(b)(6) as set
forth by the Supreme Court in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal.8

There is some disagreement in the case law on this issue, and the Tenth Circuit has not
spoken directly to it.9 However, most federal courts in Colorado have held that the
Twombly and Iqbal standards do not apply to affirmative defenses, and this Court
agrees with that analysis.10 Instead, “[a]n affirmative defense is sufficient if stated ‘in
short and plain terms’ pursuant to Rule 8(b)(1)(A), and if the movant fails to demonstrate

2 ECF No. 5. Plaintiffs contend the Answer actually asserts 30 different defenses or denials.
3 Unless otherwise noted, all references to “Rules” refer to the Federal Rules of Civil Procedure as
incorporated by the Federal Rules of Bankruptcy Procedure.

4 Fed. R. Civ. P. 12(f).

5 Sender v. Mann, 423 F.Supp.2d 1155, 1163 (D. Colo. 2006); A1 Garage Door Serv., LLC v. West, 2022
WL 952874, at *1 (D. Colo. March 30, 2022).

6 Sender, 423 F.Supp.2d at 1164.

7 Id. at 1163.

8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
9 A1 Garage Door Serv., LLC, 2022 WL 952874, at *2; see 5 Arthur R. Miller & A. Benjamin Spencer,
Federal Practice and Procedure (Wright & Miller) § 1381 (3d ed. Nov. 2025 Update) (noting conflict and
concluding the better view is that the plausibility standard outlined in Twombly and Iqbal only applies to
affirmative claims for relief).

10 A1 Garage Door Serv., LLC, 2022 WL 952874, at *2 (citing Alarid v. Biomet, Inc., 2015 WL 6376171, at
*2 (D. Colo. Sept. 22, 2015); Malibu Media, LLC v. Benson, 2014 WL 2859618, at *2 (D. Colo. June 20,
2014); Holdbrook v. SAIA Motor Freight Line, LLC, 2010 WL 865380, at *2 (D. Colo. Mar. 8, 2010)).
that the defense cannot succeed under any circumstance.”11 Whether to strike a
defense is within the court’s discretion.12

B. Defenses that are not “affirmative” and denials

The first three “affirmative defenses” listed in Debtor’s Answer are that the
Complaint: (1) fails to state a claim upon which relief can be granted; (2) fails to comply
with Fed. R. Civ. P. 8(a) and 8(c); and (3) fails to comply with Fed. R. Civ. P. 9(b). These
are not affirmative defenses. Rather, an affirmative defense is one that “does not
negate the elements of the plaintiff’s claim but instead precludes liability even if all of the
elements of the plaintiff’s claim are proven.”13 The alleged failure to state or plead a
claim does not negate the elements of the claims in the Complaint. Courts have taken
different approaches when dealing with such “non-affirmative” defenses. Some courts
strike them because they are not really affirmative defenses, while others allow them if
there is no real prejudice to the other party.14 In this case, Plaintiffs have not
persuasively shown that they will be prejudiced by the inclusion of these defenses in the
Answer. Practically speaking, these “defenses” have no impact on this case unless and
until Debtor files a substantive motion seeking dismissal. Accordingly, the Court
declines to strike affirmative defenses one, two, and three.

There are similar issues with respect to the following “affirmative defenses”: (11)
lack of justifiable reliance; (17) Debtor did not misappropriate any monies; (18) Debtor
lacked fraudulent intent; (21) Debtor did not act with moral turpitude; (22) Debtor did not
act willfully or maliciously; and (23) Plaintiffs’ alleged damages is not a willful and
malicious injury. These are not “affirmative defenses” but rather denials of various
elements of Plaintiffs’ claims.15 Again, courts take different approaches to such denials.
Some strike them as redundant while others decline to strike if there is no prejudice,
noting such denials are often made by “cautious pleaders” who are unsure of the proper
way to plead a particular argument.16 Here, the Debtor’s denials are seemingly
redundant of his denials of liability for Plaintiffs’ claims. However, there is no real
prejudice in also including them as “affirmative defenses.” The Court therefore declines
to strike affirmative defenses eleven, seventeen, eighteen, twenty-one, twenty-two, and
twenty-three.

11 A1 Garage Door Serv., LLC, 2022 WL 952874, at *2; Michaud v. Greenberg & Sada, P.C., 2011 WL
2885952, at *2 (D. Colo. July 18, 2011).

12 A1 Garage Door Serv., LLC, 2022 WL 952874, at *1.

13 Id. at *3.

14 Compare Wareka v. Native Nectar Botanicals, LLC, 2025 WL 2099631, at *3 (D. Colo. June 6, 2025)
(striking defense of failure to state a claim), with Sender, 423 F.Supp.2d at 1164 (declining to strike
defense of failure to state a claim).

15 Sender, 423 F.Supp.2d at 1163 (“A defendant’s denial of an element of an offense is not properly an
affirmative defense but a denial.”).

16 Sender, 423 F.Supp.2d at 1164.

C. Standard affirmative defenses

The Debtor’s Answer also includes several somewhat “standard” affirmative
defenses that are commonly included by litigants: (4) judicial estoppel based on the
prior state court action; (8) failure to mitigate; (9) estoppel/waiver/laches/election of
remedies; (10) unclean hands; (12) Plaintiffs breached the covenant of good faith and
fair dealing; (13) Plaintiffs breached the parties’ contract; (15) statute of frauds;
(16) setoff; and (19) statute of limitations. Plaintiffs argue these defenses are deficient
because facts do not support them, are conclusory, and/or are inapplicable to the facts
of this case. Plaintiffs’ argument, however, wrongly presumes that the more stringent
standards of Towmbly and Iqubal apply when considering motions to strike affirmative
defenses. Instead, Rule 8(b) only requires parties to “state in short plain terms its
defenses.”17 That is done here—there is a short and plain statement that provides
sufficient notice to Plaintiffs of the elements of Debtor’s defenses. Plaintiffs’
disagreement with the merits of Debtor’s defenses is not grounds to strike them. The
Court therefore declines to strike affirmative defenses four, eight, nine, ten, twelve,
thirteen, fifteen, sixteen, and nineteen.

D. Proper Parties and Jurisdiction

The Debtor’s fifth, sixth, and seventh affirmative defenses concern the proper
parties to this proceeding. The fifth affirmative defense alleges Plaintiffs failed to join as
a necessary party the trustee(s) of Plaintiffs’ revocable trust. Since the filing of the
Motion to Strike, Plaintiffs sought and were granted leave to amend their Complaint to
list themselves as trustees of their revocable trust. Thus, the argument raised by the
fifth affirmative defense is now moot and will be stricken.

The sixth and seventh affirmative defenses concern Debtor’s wholly-owned
limited liability companies, MM Eight Construction, LLC (“MMEC”) and M.M.8, LLC
(“MM8”). Neither MMEC nor MM8 are currently named as parties to this proceeding.

Debtor’s sixth affirmative defense asserts that MMEC and MM8 are indispensable
parties that the Plaintiffs failed to join as defendants. The seventh affirmative defense
asserts that Plaintiffs’ claims are “barred by this Court’s lack of jurisdiction over non-
debtor parties,” namely MMEC and MM8.18 Plaintiffs argue these defenses are deficient
because MMEC and MM8 are not debtors, not subject to § 523(a) claims, and not
currently parties.

The Court reads these affirmative defenses as alleging that Plaintiffs failed to join
MMEC and MM8 as indispensable parties under Fed. R. Civ. P. 19 and that, if joined,
this Court would lack jurisdiction to determine any claims against MMEC and MM8.19

Given that MMEC and MM8 are not debtors, the Court presumes Debtor is arguing
MMEC and MM8 are necessary parties to the Plaintiffs’ construction trust fund and civil

17 Fed. R. Civ. P. 8(b).

18 ECF No. 5, ¶ 7; ECF No. 16, ¶ 43.

19 In his Answer, Debtor admits that this Court has jurisdiction over the claims currently alleged in the
Complaint. ECF No. 1, ¶ 4; ECF No. 5, ¶ 4.

theft claims. Although not the model of clarity and plead partially as a hypothetical, the
Court concludes these defenses meet the “short and plain statement” requirements of
Rule 8(b).20 Rule 8(d) allows for a party to set out defenses alternatively or
hypothetically. The Court notes, however, that merely asserting these affirmative
defenses in the Answer is of little consequence. Debtor will need to file a motion to
dismiss or other substantive motion concerning the alleged indispensable parties. The
Court will address the merits of any such argument if and when that occurs. The Court
will thus strike affirmative defense number five, but not defenses six and seven.

E. Other assertions

The remaining “affirmative defenses” in Debtor’s Answer are: (14) request of
attorney’s fees under § 523(d); (24) a reservation of “all defenses available; and (25) a
reservation of the right to add, supplement of modify his affirmative defenses. None of
these are defenses, let alone “affirmative defenses.”21 Nevertheless, little would be
served by striking them from the Answer. The Debtor’s right to seek attorney’s fees is
dependent on the terms of § 523(d) and is in no way impacted by his listing that
purported right as an affirmative defense. Furthermore, the scheduling order governs
the Debtor’s ability to amend his affirmative defenses, the timing requirements
contained in Rule 12(b), and the amendment requirements of Rule 15. Nothing about
Debtor’s answer changes this reality. “Thus, little purpose would be served in striking
this equally ‘purposeless’ defense.”22

F. Incorporation by Reference

Finally, the Plaintiffs take issue with a statement in Debtor’s Answer seeking to
“incorporate by reference all their Answers and responses to the Plaintiffs’ Complaint
(and any amendments thereto) filed in the [prepetition state court lawsuit].”23 The need
for the Debtor to incorporate state-court pleadings into these adversary proceedings is
unclear. Plaintiffs argue it only creates confusion, and this Court agrees. Rule 10(c)
permits a litigant to incorporate by reference allegations made within the same pleading,
as well as allegations made in other pleadings in the case. “However, the Court does
not believe that it is proper to incorporate by reference wholesale the allegations in a
[pleading] in a completely separate action, even if that action is between the same
parties.”24 Allowing this practice not only violates Rule 8 but also unnecessarily causes
confusion by requiring the Court to look at pleadings from a different proceeding to

20 See Herman v. PBIA & Co., 2022 WL 17547720, at 7 (D. Colo. Aug. 2, 2022) (declining to strike
indispensable party defense).

21 A1 Garage Door Serv., LLC, 2022 WL 952874, at *8 (“[R]eservation language such as defendant
provides here is not even an affirmative defense – it is simply a statement reserving [defendant’s] right to
amend [his] defenses in the future.” (internal quotation omitted)).

22 Synergy Captial Group, LLC v. Diaz (In re Bal Harbour Quarzo, LLC), 640 B.R. 597, 603 (Bankr. S.D.
Fla. 2022) (citing Moore v. R. Craig Hemphill & Assocs., 2014 WL 2527162, at *1 (M.D. Fla. 2014)).
23 ECF No. 5, at 1-2.

24 Davis v. Bifani, 2007 WL 1216518, at *1 (D. Colo. April 24, 2007).

determine what defenses the Debtor is asserting in this case.° Accordingly, any
attempt by the Debtor to incorporate pleadings from the state court into his answer is
stricken.
CONCLUSION
For all the reasons set forth above, the Court hereby ORDERS that the Motion to
Strike is DENIED as to affirmative defenses numbered 1-4 and 6-25. The Motion to
Strike is GRANTED with respect to affirmative defense number 5 and as to the Debtor’s
incorporation by reference of state court pleadings.
As one court aptly put it, “motions to strike, in most cases, waste everyone’s
time.”26 Although the Court is denying most of Plaintiffs’ Motion to Strike in the specific
circumstances of this case, the Debtor should not take this ruling as an implicit approval
of the manner in which his counsel listed “affirmative defenses” in his Answer. The
Court encourages counsel to be more judicious in selecting and listing only actual
affirmative defenses in future pleadings.
Dated: March 27, 2026 BY THE COURT:

                                                < 
                                   Michael E. Romero, 
                                   United State     nkruptcy Court 

25 Id. 26 Lane v. Page, 272 F.R.D. 581, 588-97 (D.N.M. 2011).