Affirmative Defenses Are Forfeited If Not Reasserted at Summary Judgment (Third Circuit)

Introduction

DLJ Mortgage Capital, Inc. v. Neal Antonio Stevens; Carlvin Leonard Stevens, a/k/a Calvin Leonard Stevens; Sylvin Rodford Stevens; Kevin Winfield Stevens; Rhea Renea Stevens; et al. is a foreclosure dispute arising from a 1997 mortgage executed by Carlton Stevens over multiple adjacent plots in St. Croix to secure a $392,000 loan. After Stevens defaulted and died in 2011, the mortgage interest was assigned to DLJ Mortgage Capital, Inc. (“DLJ”), which sued Stevens’s heirs and other lienholders.

The litigation presented two central issues: (1) whether the heirs could defeat DLJ’s debt and foreclosure claims based on affirmative defenses that were pleaded in their answer but not raised in opposition to DLJ’s summary-judgment motion; and (2) whether the District Court properly reformed the mortgage to include an omitted plot (20-BC) as a mutual mistake.

Summary of the Opinion

The Third Circuit (Bibas, J.) affirmed. It announced a new procedural rule for the Circuit: a party forfeits an affirmative defense by failing to raise it in opposition to summary judgment, even if the defense was included in the answer. Because the heirs did not respond to DLJ’s summary-judgment motion, their affirmative defenses could not be revived on appeal.

On reformation, the Court held that—even if DLJ’s proof of mutual mistake was not especially strong—clear-error review controlled. Given DLJ’s submission of some probative evidence and the heirs’ submission of none, the District Court’s mutual-mistake finding was not clearly erroneous.

Analysis

Precedents Cited

1) The newly adopted “abandonment/forfeiture at summary judgment” approach

The panel noted it had “never had occasion to decide” the effect of failing to re-raise defenses at summary judgment, then adopted the approach used by other circuits:

  • Diversey Lever, Inc. v. Ecolab, Inc., 191 F.3d 1350, 1352-53 (Fed. Cir. 1999): treated failure to press a defense in summary-judgment briefing as “abandonment of the defense.” This was the lead authority for the rule the Third Circuit adopted.
  • Vela v. City of Houston, 276 F.3d 659, 678 (5th Cir. 2001): held a party cannot “abandon an issue” at summary judgment and later “resurrect” it by pointing back to the pleadings; it quoted a line that traces back through Fifth Circuit authority to: Edward B. Marks Music Corp. v. Cont'l Rec. Co., 222 F.2d 488, 492 (2d Cir. 1955).
  • Grenier v. Cyanamid Plastics, Inc., 70 F.3d 667, 678 (1st Cir. 1995), and Est. of Shapiro v. United States, 634 F.3d 1055, 1060 (9th Cir. 2011): both reflect the same principle—issues pleaded but not argued at summary judgment are treated as abandoned.
  • The Court also cited closely related “failure to oppose summary judgment” cases: Butler v. Daimler Trucks N. Am., LLC, 74 F.4th 1131, 1151 (10th Cir. 2023) (failure to raise a factual dispute), and Sprafka v. Med. Device Bus. Servs., Inc., 139 F.4th 656, 662 (8th Cir. 2025) (failure to oppose a basis for summary judgment).

2) Preservation on appeal and the district-court presentation requirement

Having held the defenses forfeited at summary judgment, the Court applied the Third Circuit’s general appellate-preservation rule: Royce v. Hahn, 151 F.3d 116, 125 (3d Cir. 1998), which states the Court will not “consider on appeal issues which were not presented to the district court.” The forfeiture holding thus operated as a bridge between summary-judgment practice and appellate review: if it is not argued at the dispositive-motion stage, it is not preserved for appeal.

3) Forfeiture vs. waiver and “extraordinary circumstances”

A key doctrinal move was the Court’s insistence on terminology. Relying on: United States v. Dowdell, 70 F.4th 134, 140 (3d Cir. 2023) (quoting Wood v. Milyard, 566 U.S. 463, 471 & n.5 (2012)), the panel distinguished:

  • Waiver (intentional relinquishment) as defined in Johnson v. Zerbst, 304 U.S. 458, 464 (2023) (as quoted by the Opinion).
  • Forfeiture (failure to timely assert) as defined in United States v. Olano, 507 U.S. 725, 733 (1993).

The Court reinforced that under its own practice, underdeveloped or only “in passing” arguments are treated as forfeited, not waived, citing Kalu v. Spaulding, 113 F.4th 311, 344 n.21 (3d Cir. 2024), and United States v. Heatherly, 985 F.3d 254, 270 (3d Cir. 2021). That logic was extended to affirmative defenses: pleading them “formulaically” in an answer but not mentioning or developing them at summary judgment is forfeiture.

Finally, the Court flagged the limited safety valve for forfeiture—appellate “resurrect[ion]” in “extraordinary circumstances” (from Dowdell)—and found none here.

4) Standards of review and reformation doctrine

The Court restated that summary judgment is reviewed de novo, citing Tundo v. County of Passaic, 923 F.3d 283, 286-87 (3d Cir. 2019). Reformation based on mutual mistake was reviewed for clear error, referencing Fed. R. Civ. P. 52(a)(6) and citing Thomas v. Trans World Airlines, Inc., 457 F.2d 1053, 1058 (3d Cir. 1972) (Aldisert, J., concurring), as well as Resolution Tr. Corp. v. Midwest Fed. Sav. Bank of Minot, 36 F.3d 785, 799 (9th Cir. 1993).

On the merits of reformation, the Court relied on Virgin Islands authority: Massac v. Gov't of V.I., Off. of Lt. Gov., 74 V.I. 320, 325 (Super. Ct. 2021), quoting Restatement (Second) of Contracts § 155 (1981), and reiterated that mutual mistake must be shown by clear and convincing evidence. It also used Allen v. Hovensa, LLC, 59 V.I. 430, 440 (2013), to reject the argument that “adhesion” alone makes enforcement inequitable.

The clear-error threshold was described with the Third Circuit’s formulation in DiFederico v. Rolm Co., 201 F.3d 200, 208 (3d Cir. 2000): reversal is warranted only when findings are “completely devoid of minimum evidentiary support” or bear “no rational relationship” to supporting data.

Legal Reasoning

1) The new procedural rule: pleadings are not enough at the dispositive stage

The heirs pleaded thirty-three affirmative defenses, but when DLJ moved for summary judgment on debt and foreclosure, the heirs “failed to respond.” The Court treated summary-judgment briefing as the point at which parties must identify which pleaded defenses remain live and supply argument (and, where relevant, record support). By saying nothing, the heirs did not merely present weak defenses; they forfeited them.

The reasoning is functional: summary judgment tests whether there is a genuine dispute of material fact requiring trial. If a party does not invoke a defense when that test is applied, the district court has no occasion to evaluate it, and the appellate court has no district-court ruling to review. The Court thus aligned defense preservation with the procedural posture in which the case is actually decided.

2) Forfeiture (not waiver) preserves the doctrine’s coherence

The Court’s insistence on “forfeiture” does doctrinal work. Silence at summary judgment often does not show an intentional decision to abandon a defense; it may reflect neglect. Labeling the consequence as forfeiture preserves the possibility (however narrow) that an appellate court could reach a forfeited issue in “extraordinary circumstances,” while still enforcing orderly litigation.

3) Reformation upheld under clear-error review

The Court candidly acknowledged DLJ’s evidence for mutual mistake was “not particularly strong” and “even less persuasive” in parts. But it emphasized the asymmetry in the record: DLJ supplied at least some probative support (notably the 1972 map and related references), while the heirs supplied none. Under DiFederico v. Rolm Co.’s deferential clear-error standard, that was enough to affirm.

Impact

  • Third Circuit preservation rule at summary judgment: The Opinion establishes a clear, circuit-level rule: affirmative defenses must be reasserted and argued in opposition to summary judgment (not merely pleaded), or they are forfeited.
  • Litigation practice consequences: Parties can no longer treat an answer’s “kitchen-sink” defenses as placeholders that automatically survive to appeal. Dispositive-motion briefing becomes the required checkpoint for identifying and developing defenses.
  • Appellate posture: The decision tightens the pathway to appellate review by linking Royce v. Hahn’s “presented to the district court” requirement to the summary-judgment stage specifically.
  • Reformation claims: The case also illustrates how difficult it is to overturn reformation findings on appeal when clear-error review applies and the appellant offers no counter-evidence.

Complex Concepts Simplified

  • Affirmative defense: A defendant’s legal reason why the plaintiff should not win even if the plaintiff’s core facts are true (e.g., statute of limitations).
  • Summary judgment: A pretrial decision that ends a claim when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law.
  • Forfeiture vs. waiver: Forfeiture is failing to raise an argument on time; waiver is intentionally giving it up. Forfeiture may (rarely) be excused in “extraordinary circumstances”; waiver generally cannot.
  • Reformation (mutual mistake): A court’s correction of a written contract that does not reflect what both parties actually agreed to because of a shared mistake. The proponent must prove mutual mistake by clear and convincing evidence (a heightened evidentiary standard).
  • Clear-error review: A deferential appellate standard. Even if appellate judges might have decided differently, they will not reverse unless the trial court’s finding lacks minimal support or is irrational in light of the record.
  • Contract of adhesion: A standardized contract offered on a take-it-or-leave-it basis. Under Allen v. Hovensa, LLC, adhesiveness alone does not make a contract unenforceable.

Conclusion

The most consequential holding is procedural: in the Third Circuit, affirmative defenses pleaded in an answer are forfeited if not raised in opposition to summary judgment. The decision aligns the preservation requirement with the stage at which civil cases are commonly resolved and limits appeals to issues actually litigated at the dispositive-motion phase.

On the merits, the Opinion also underscores the power of standards of review: the heirs’ failure to produce evidence and the deference inherent in clear-error review led the Court to affirm reformation of the mortgage despite acknowledging weaknesses in DLJ’s proof.