Corporation, f/k/a TMS Mortgage, Inc., ("HomEq") by its counsel, files

Transcription

IN THE CIRCUIT COURT OF JACKSON
AT KANSAS CITY
SCHWARTZ,
JOHN AND JEANETTE
et
COUNTY, MISSOURI
al.,
Plaintiffs,
Case
Case
Case
Case
v.
BANN-COR MORTGAGE, et
No.
No.
No.
No.
226639
226639-01
226639-02
226639-03
CV
CV
CV
CV
00
00
00
00
al.,
Division 14
Defendants.
DEFENDANT WACHOViA EQUITY SERVICING, LLC'S, as successor to HOMEQ
SERVICING CORPORATION, f/k/a TMS MORTGAGE, INC., ANSWER AND
AFFII•dATIVE DEFENSES TO PLAINTIFFS' FIFTH AMENDED PETITION
Defendant
Corporation,
Wachovia
Equity Servicing, LLC,
Mortgage, Inc., ("HomEq") by
f/k/a TMS
Plaintiffs
or
HomEq Servicing
counsel, files this Answer and
its
Affirmative Defenses to the Fifth Amended Petition filed
Schwartz, James G. Wong, and Daniel R. and Wanda
to
successor
as
behalf of John and Jeannette
on
D. Jensen
(collectively,
the "Named
"Plaintiffs").
ANSWER
paragraph
Each
paragraph
of the Plaintiffs' Fifth Amended Petition.
Fifth Amended
response is
knowledge
or
required.
are
HomEq
denied.
in
to
answer
denies all
the
same
allegations
numbered
of Plaintiffs'
Answer.
of the Fifth Amended Petition contains conclusions of law to which
To the extent that
information sufficient to form
allegations contained
allegations
HomEq's
Petition, except those specifically admitted in this
Paragraph
1.
no
of this Answer constitutes
Paragraph
response may be
a
a
belief
as
required, HomEq
to the accuracy
of the Fifth Amended Petition
or
is without
veracity
of the
and, accordingly, those
Paragraph
2.
no
response is
knowledge
or
required.
are
accuracy
or
veracity
in
Paragraph
is without
of the
accuracy
HomEq
or
veracity
is without
of the
HomEq
accuracy
or
veracity
is without
of the
knowledge
accuracy
HomEq
or
veracity
no
of the
required.
knowledge
or
allegations
contained in
allegations
are
of the
contained in
knowledge
By
belief
as
to the
3 of the Fifth Amended Petition
Paragraph
a
belief
as
to
the
information sufficient
or
in
Paragraph
to
form
a
belief
as
to the
denied.
are
knowledge
allegations
are
or
contained in
Paragraph
to
form
a
belief
as
to the
denied.
7 of the Fifth Amended Petition contains conclusior•s of law to which
To the extent that
denied.
Paragraph
a
or
is without
Paragraph
response is
veracity
or
denied.
are
and, accordingly, those allegations
7.
to the accuracy
or
contained in
knowledge
6.
as
is without
denied.
are
allegations
5.
belief
a
required, HomEq
allegations
4.
response may be
a
denied.
HomEq
3.
To the extent that
allegations
2 of the Fifth Amended Petition contains conclusions of law to which
Paragraph
response may be
a
a
belief
as
required, HomEq
to the accuracy
or
veracity
-2-
partial quotation
of the
way of further response, the Missouri Revised Statutes
statements, and Plaintiffs' characterization and/or
is without
are
written
of those Statutes is denied.
no
Paragraph
8.
response is
required.
To the extent that
knowledge
or
allegations
contained in
allegations
are
response may be
a
Paragraph
By
denied.
belief
a
HomEq
accuracy
or
partial quotation
of the
allegations
HomEq admits
10.
knowledge
are
contained in
Paragraph
HomEq
accuracy
or
veracity
of the
HomEq
accuracy
or
veracity
is without
of the
or
veracity
of the
allegations
14.
or
HomEq
veracity
is without
of the
are
are
or
as
to the
or
waived service of this
allegations.
Paragraph
a
belief
as
to
the
cor•tained in
Paragraph
to form
a
belief
as
to
the
denied.
or
contained in
Paragraph
to form
a
belief
as
to
the
denied.
knowledge
allegations
belief
denied.
knowledge
are
a
or
contained in
HomEq is without knowledge
13.
accuracy
are
allegations
accuracy
knowledge
allegations
12.
that it has been served with process
is without
written
are
denied.
process in this action but denies the remainder of Plaintiffs'
11.
of the
or
is without
veracity
or
is without
veracity
to the accuracy
9.
as
required, HomEq
or
contained in
denied.
-3-
Paragraph
a
belief
as
to the
no
15.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
by
To the extent that
Paragraph
as
to
the accuracy
Bann-Cor
to
Paragraph
response is
required.
no
contained in
time
was
by
did not
Plaintiffs
purchase
G.
James
or
veracity
of the
By
way of further response,
hold any second mortgage loans made
Wong
HomEq liable under
cannot hold
16.
that at
HomEq
the Named
second mortgage loan made
allegations
or
15 of the Fit•h Amended Petition
Bann-Cor to Plaintiffs John A. and Jeannette A. Schwartz.
Accordingly, Plaintiffs
no
belief
a
is without
denied, except that HomEq admits that it purchased and serviced the loan made
Plaintiffs have admitted that
by
required, HomEq
response may be
a
any
or
Daniel
theory
Wanda
and
Jensen.
assignee liability
of
on
any
Bann-Cor to these Named Plaintiffs.
To the extent that
Paragraph
it involved in
response may be
a
required, HomEq
16 of the Fifth Amended Petition.
a
denies the
HomEq specifically
partnership, joint venture/enterprise,
and/or
conspiracy
avers
with
Bann-Cor.
no
17.
Paragraph
response is
required.
allegations
no
contained in
18.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
response may be
a
required, HomEq
denies the
To the extent that
Paragraph
response may be
a
a
belief
as
required, HomEq
to the accuracy
denied.
-4-
or
is without
veracity
of the
no
19.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
20.
Paragraph
response is
required.
allegations
contained in
allegations
are
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
To the extent that
Paragraph
response may be
a
belief
a
as
required, HomEq
to the accuracy
or
is without
veracity
of the
21.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
Paragraph
response may be
a
denied.
or
no
To the extent that
knowledge
by
To the extent that
Paragraph
response may be
a
to form
a
belief
as
required, HomEq
to the accuracy
or
is without
veracity
of the
denied.
22.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
denied.
Paragraph
By
response may be
a
a
belief
as
required, HomEq
to the accuracy
or
veracity
-5-
partial quotation
of the
is without
are
written
no
23.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
To the extent that
information
sufficient
Paragraph
to
response may be
a
form
belief
a
24.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
the accuracy
or
veracity
of the
To the extent that
denied.
Paragraph
By
response may be
a
belief
a
25.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
or
is without
veracity
of the
are
written
To the extent that
Paragraph
By
response may be
a
a
belief
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
are
written
To the extent that
denied.
the accuracy
partial quotation
26.
to
way of further response, the Misso-uri Revised Statutes
denied.
as
required, HomEq
no
to
is without
denied.
knowledge
no
as
required, HomEq
Paragraph
By
response may be
a
a
belief
as
to
required, HomEq
the accuracy
or
veracity
-6-
partial quotation
of the
is without
are
written
no
27.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
By
denied.
response may be
a
belief
a
HomEq
accuracy
or
the
knowledge
allegations
HomEq
29.
accuracy
or
veracity
is without
of the
are
partial quotation
no
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
in
no
Paragraph
response is
required.
knowledge
or
allegations
contained in
written
are
a
belief
as
to
the
Paragraph
a
belief
as
to the
denied.
To the extent that
Paragraph
By
response may be
a
a
belief
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
31.
or
denied.
of the
denied.
are
Paragraph
is without
veracity
or
or
contained in
knowledge
30.
the accuracy
is without
veracity of
to
28.
as
required, HomEq
are
written
To the extent that
Paragraph
response may be
a
a
belief
as
to
required, HomEq
the accuracy
-7-
or
is without
veracity
of the
allegations
are
By
denied.
partial quotation
no
32.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
Paragraph
response is
required.
or
allegations
contained in
allegations
are
response is
required.
contained in
time
Bann-Cor.
By
Paragraph
belief
a
as
required, HomEq
to the accuracy
or
is without
veracity
of the
To the extent that
Paragraph
response may be
a
belief
a
as
required, HomEq
to the accuracy
or
is without
veracity
of the
was
To the extent that
Paragraph
it involved in
a
Agreement
quotation
of those documents is denied.
35.
Paragraph
response is
required.
in
response may be
required, HomEq
Correspondent/Lender
written statements, and Plaintiffs'
denies the
HomEq specifically
partnership, joint venture/ente•rise,
way of further response, the
are
a
Purchase
no
response may be
a
denied.
Paragraph
no
To the extent that
34.
that at
denied.
33.
allegations
written
knowledge
no
are
and/or
avers
conspiracy
with
Broadcast and the Sale and
characterization and/or
partial
To the extent that
Paragraph
a
response may be
required, HomEq
-8-
denies the
HomEq specifically
avers
that at
no
time
was
it involved in
a
and/or
conspiracy
with
Bann-Cor.
no
36.
Paragraph
response is
required.
allegations
that at
no
contained in
time
was
To the extent that
Paragraph
it involved in
response may be
a
required, HomEq
a
denies the
HomEq specifically
and/or
conspiracy
avers
with
Bann-Cor.
37.
HomEq denies the allegations contained in Paragraph
38.
Paragraph
response is
required.
37 of the Fifth Amended
Petition.
no
allegations
that at
no
contained in
time
was
To the extent that
Paragraph
it involved in
a
response may be
required, HomEq
a
denies the
HomEq specifically
and/or
conspiracy
avers
with
Bann-Cor.
no
39•
Paragraph
response is
required.
allegations
that at
no
contained in
time
was
To the extent that
Paragraph
it involved in
a
response may be
required, HomEq
a
denies the
HomEq specifically
and/or
conspiracy
avers
with
Bann-Cor.
no
40.
Paragraph
response is
required.
allegations
contained in
To the extent that
Paragraph
a
response may be
required, HomEq
-9-
denies the
HomEq specifically
avers
that at
time
no
it involved in
was
a
conspiracy
and/or
with
Bann-Cor.
no
41.
Paragraph
response is
required.
that at
time
no
To the extent that
Paragraph
in
it involved in
was
response may be
a
required, HomEq
HomEq specifically
a
denies the
avers
conspiracy
and/or
with
Bann-Cor.
HomEq denies
42.
allegations
the
HomEq specifically
Petition.
venture/enterprise,
HomEq
43.
accuracy
or
and/or
veracity
avers
conspiracy
is without
of the
no
44.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
it
that
allegations
are
contained in
no
Paragraph
response is
required.
knowledge
or
involved
in
a
to
form
partnership, joint
Paragraph
a
belief
as
to the
denied.
To the extent that
Paragraph
By
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
45.
not
42 of the Fifth Amended
or
denied•
was
Paragraph
with Bann-Cor.
knowledge
contained in
are
written
To the extent that
response may be
a
a
-10-
belief
as
required, HomEq
to the accuracy
or
is without
veracity
of the
allegations
contained in
allegations
are
no
46.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
To the extent that
Paragraph
response is
required.
are
form
in
to the accuracy
is without
veracity
or
of the
To the extent that
Paragraph
By
denied.
48.
Paragraph
response is
required.
k•owledge
or
allegations
contained in
allegations
are
by
as
required, HomEq
response may be
a
belief
a
as
to
required, HomEq
the accuracy
partial quotation
is without
veracity
or
of the
no
belief
a
allegations
to
response may be
a
denied.
Paragraph
or
47.
knowledge
denied.
knowledge
no
Paragraph
are
written
To the extent that
Paragraph
response may be
a
belief
a
as
to
required, HomEq
the accuracy
is without
veracity
or
of the
49.
accuracy
or
HomEq
veracity
is without
of the
knowledge
allegations
are
or
contained in
Paragraph
a
belief
as
to the
denied, except that HomEq admits that Defendant HomEq
-11-
purchased
and serviced the loan made
by
Bann-Cor to Plaintiffs John A. and Jeannette A.
Schwartz.
no
50.
Paragraph
response is
required.
allegations
contained in
allegations
are
denied.
Paragraph
response is
required.
allegations
contained in
allegations
are
52.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
response may be
a
required, HomEq
conspiracy
that at
avers
no
time
was
denies the
it involved in
a
partnership,
with Bann-Cor.
To the extent that
Paragraph
and/or
response may be
a
required, HomEq
51 of the Fifth Amended Petition and,
HomEq specifically
joint venture/enterprise,
no
Paragraph
and/or
51.
denied.
To the extent that
HomEq specifically
joint venture/enterprise,
no
conspiracy
that at
avers
no
time
was
denies the
accordingly,
it involved in
a
those
partnership,
with Bann-Cor.
To the extent that
Paragraph
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
denied.
53.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
to
form
response may be
a
a
belief
as
required, HomEq
to the accuracy
denied.
-12-
or
is without
veracity
of the
HomEq
54.
accuracy
or
veracity
is without
of the
knowledge
allegations
no
55.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
are
or
contained in
no
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
To the extent that
Paragraph
to
the
By
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
are
written
To the extent that
Paragraph
to
response may be
a
form
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
denied.
57.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
as
56.
belief
denied.
denied.
Paragraph
a
To the extent that
Paragraph
response may be
a
belief
a
as
required, Hom•q
to the accuracy
or
is without
veracity
of the
denied.
58.
Paragraph
response is
required.
knowledge
or
allegations
contained in
To the extent that
Paragraph
response may be
a
a
belief
as
required, HomEq
to the accuracy
-13-
or
is without
veracity
of the
allegations
purchase
are
or
denied.
no
any second
cannot hold
HomEq
mortgage loan made by Bann-Cor
59.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
by
Wong. Accordingly, Plaintiffs
on
to
Paragraph
response is
required.
or
allegations
contained in
allegations
are
To the extent that
Paragraph
of
assignee liability
this Named Plaintiff.
required, HomEq
belief
a
as
to
the accuracy
To the extent that
or
is without
veracity
of the
Paragraph
By
denied.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
belief
a
as
to the accuracy
or
partial quotation
is without
veracity
of the
are
written
To the extent that
Paragraph
By
response may be
a
denied.
required, HomEq
response may be
a
6 t.
belief
a
as
to
required, HomEq
the accuracy
or
cannot hold
by
any
of the
HomEq
did not
theory of assignee liability
to this Named Plaintiff.
-14-
veracity
Bann-Cor to the Named Plaintiff James G.
HomEq liable under
is without
way of further response, Plaintiffs have admitted that
any second
theory
•owledge
on
liable under any
response may be
a
or
denied.
60.
purchase
did not
knowledge
no
HomEq
By
no
62.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
purchase
or
To the extent that
denied.
Paragraph
By
cannot hold
or
veracity
of the
by
allegations
no
by
64.
Paragraph
response is
required.
k•nowledge
or
allegations
contained in
allegations
are
are
no
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
of the
under any
theory
of
or
contained in
HomEq
did not
assignee liability
Paragraph
a
belief
as
to the
denied.
To the extent that
Paragraph
By
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
65.
veracity
or
Bann-Cor to this Named Plaintiff.
denied.
to the accuracy
is without
HomEq liable
HomEq is without knowledge
63.
as
any second mortgage loan made
accuracy
belief
a
required, HomEq
on
response may be
a
are
written
To the extent that
Paragraph
response may be
a
a
belief
as
required, HomEq
to the accuracy
denied.
-15-
or
is without
veracity
of the
no
66.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
response is
required.
knowledge
or
allegations
contained in
allegations
are
form
belief
a
denied.
to
the accuracy
or
is without
veracity
accordingly,
of the
those
To the extent that
response may be
a
Paragraph
belief
a
on
Accordingly,
by
respo_n_se is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
response is
required.
knowledge
or
allegations
contained in
veracity
of the
by
HomEq liable under
HomEq did
not
any
theory of
Paragraph
By
response may be
a
to form
belief
a
as
required, HomEq
to the accuracy
or
partial quotation
is without
veracity
of the
way of •rther response, the Missouri Revised Statutes
69.
or
68 of the Fifth Amended Petition contains conclusions of law to -which
denied.
the accuracy
is without
Bann-Cor to the Named Plaintiffs Daniel
Plaintiffs cannot hold
Paragraph
to
By
68.
as
required, HomEq
assignee liability
no
as
required, HomEq
66 of the Fifth Amended Petition and,
and Wanda Jenseno
_no
Paragraph
to
response may be
a
denied.
Paragraph
or
To the extent that
67.
purchase
are
written
To the extent that
Paragraph
to form
response may be
a
a
belief
as
required, HomEq
to the accuracy
-16-
or
is without
veracity
of the
allegations
purchase
are
or
denied.
assignee liability
Accordingly,
on
Paragraph
response is
required.
To the extent that
or
allegations
contained in
allegations
are
or
assignee liability
no
on
Paragraph
liable under any
theory
of
to
Accordingly,
form
belief
a
Paragraph
response is
required.
or
allegations
contained in
allegations
are
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
the accuracy
or
by
to
is without
veracity
of the
HornEq did
not
the Named Plaintiffs Daniel
HomEq liable under
any
theory of
To the extent that
Paragraph
By
response may be
a
belief
a
as
to
required, HomEq
the accuracy
71 of the FiP.•h Amended Petition
or
pa•ial quotation
is without
veracity
of the
a_n_d, accordingly, those
72.
to
by Bann-Cor
denied.
as
71.
required, HomEq
By
knowledge
no
by
HomEq
response may be
a
and Wanda Jensen.
did not
knowledge
denied.
HomEq
Bann-Cor to the Named Plaintiffs Daniel
70.
purchase
by
and Wanda Jensen.
no
By
are
written
To the extent that
Paragraph
response may be
a
a
belief
as
to
required, HomEq
the accuracy
denied.
-17-
or
is without
veracity
of the
no
73.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
To the extent that
Paragraph
response may be
a
belief
a
74.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
to the accuracy
or
is without
veracity
of the
To the extent that
Paragraph
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
denied.
75.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
75 of the Fifth Amended Petition contains conclusions of taw to which
To the extent that
denied.
Paragraph
By
response may be
a
belief
a
76.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
as
required, HomEq
to the accuracy
or
partial quotation
is without
veracity of the
no
as
required, HomEq
denied.
knowledge
no
are
written
To the extent that
Paragraph
response may be
a
a
belief
as
to
required, HomEq
the accuracy
denied.
-18-
or
is without
veracity
of the
no
77.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
response is
required.
are
Paragraph
belief
a
in
denied.
79.
Paragraph
response is
required.
knowledge
or
allegations
contained in
To the extent that
Paragraph
By
belief
a
or
veracity
of the
80.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
to the accuracy
or
partial quotation
is without
veracity of
the
are
written
To the extent that
Paragraph
By
to
response may be
a
form
belief
a
as
required, HomEq
to the accuracy
or
partial quotation
is without
veracity
of the
way of •arther response, the Missouri Revised Statutes
are
written
To the extent that
denied.
as
required, HomEq
no
the accuracy
response may be
a
to form
denied.
al•.•,,,•
to
is without
no
as
required, HomEq
allegations
response may be
a
denied.
Paragraph
or
To the extent that
78.
knowledge
Paragraph
By
response may be
a
a
belief
as
required, HomEq
to the accuracy
or
veracity
-19-
partial quotation
of the
is without
are
written
no
81.
Paragraph
response is
required.
Revised Statutes
are
To the extent that
further response may be
a
required,
the Missouri
partial quotation
written statements, and Plaintiffs' characterization and/or
no
82.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
denied.
Paragraph
By
response may be
a
no
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
Paragraph
response is
required.
Revised Statutes
are
the accuracy
partial quotation
or
veracity
of the
are
written
To the extent that
Paragraph
By
response may be
a
to form
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
partial quotation
of the
84.
to
is without
denied.
as
83.
belief
a
required, HomEq
are
written
To the extent that
a
required,
the Missouri
partial quotation
no
85.
Paragraph
response is
required.
knowledge
or
To the extent that
response may be
a
a
-20-
belief
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
allegations
contained in
allegations
are
Paragraph
By
denied.
partial quotation
no
86.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
By
cost" loan
Protection Act
Money
no
on
87.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
response is
required.
no
contained in
time
as
to the accuracy
or
is without
veracity
of the
the Named Plaintiffs Jo•hn and Jeannette Schwartz
§ 1602(aa) of the
Ownership
Home
Plaintiffs cannot utilize 15 U.S.C.
by
not
was
and
§ 1641(d)
a
Equity
to
hold
To the extent that
Paragraph
response may be
a
belief
a
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
denied.
Paragraph
that at
belief
a
88°
allegations
required, HomEq
response may be
a
the second mortgage loan made
knowledge
no
to
("HOEPA"). Accordingly,
Store liable
defined in 15 U.S.C.
as
written
way of further response, Plaintiffs have admitted that the second
•high
are
denied.
was
To the extent that
Paragraph
it involved in
a
response may be
required, HomEq
a
HomEq specifically
Bann-Cor.
-21-
denies the
and/or
conspiracy
avers
with
no
89.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
form
belief
a
no
Paragraph
response is
required.
Revised Statutes
are
to the accuracy
partial quotation
90.
as
required, HomEq
or
is without
veracity
of the
•vay of further response, the Missouri Revised Statutes
By
denied.
to
response may be
a
are
written
To the extent that
a
required,
the Missouri
partial quotation
no
91.
Paragraph
response is
required.
To the extent that
knowledge
or
allegations
contained in
allegations
are
92.
no
•,•,•
h 92
required.
Lnowl,,de,,•
•'•
or
allegations
contained in
allegations
are
no
to the accuracy
or
is without
veracity
of the
•'• TM
Fifth Amended Petition contains conclusions of
To the extent that
Paragraph
t•
response may be
a
form
belief
a
•
•.w to
required, HomEq
to the accuracy
or
which
is without
veracity
of the
denied.
Paragraph
response is
required.
or
as
93.
knowledge
belief
a
required, HomEq
denied.
o
response is
Paragraph
response may be
a
To the extent that
to form
response may be
a
a
-22-
belief
as
to
required, HomEq
the accuracy
or
is without
veracity
of the
allegations
are
in
denied.
Paragraph
By
partial quotation
no
94.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
no
95.
Paragraph
response is
required.
allegations
contained in
allegations
are
To the extent that
Paragraph
response may be
a
belief
a
as
required, HomEq
to the accuracy
or
is without
veracity
of the
To the extent that
Paragraph
to
response may be
a
form
belief
a
as
required, HomEq
to the accuracy
or
is without
veracity
of the
denied.
Paragraph
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
information_ sufficient to form
denied.
Paragraph
By
response may be
a
belief
a
97.
Paragraph
response is
required.
as
to
required, HomEq
the accuracy
or
partial quotation
is without
veracity
of the
way of fu•her response, the Missouri Revised Statutes
or
96.
knowledge
written
denied.
or
no
are
knowledge
no
are
written
To the extent that
response may be
a
a
-23-
belief
as
required, HomEq
to the accuracy
or
is without
veracity of the
allegations
contained in
allegations
are
no
98.
Paragraph
response is
required.
or
allegations
contained in
allegations
are
To the extent that
Paragraph
belief
a
as
response is
required.
knowledge
or
allegations
contained in
allegations
are
To the extent that
Paragraph
By
denied.
Paragraph
100.
response is
veracity
of the
or
allegations
contained in
allegations
are
belief
a
as
partial quotation
To the extent that
Paragraph
a
or
veracity
of the
are
written
a
response may be
belief
as
required, HomEq
to the accuracy
or
partial quotation
WHEREFORE, Wachovia Equity Servicing, LLC,
as
-24-
of the
are
written
successor
Mortgage, Inc., respectfully requests this
Plaintiffs.
is without
veracity
against
the accuracy
is without
100 of the Fifth Amended Petition contains conclusions of law to
By
f/k/a TMS
to
denied.
required, HomEq
response may- be
a
required.
knowledge
favor of it and
or
Corporation,
to the accuracy
is without
denied.
Paragraph
no
required, HomEq
response may be
a
99.
which
denied.
knowledge
no
Paragraph
to
HomEq Servicing
Court to enter
judgment
in
AFFIRMATIVE DEFENSES
Plaintiffs' Fifth Amended Petition fails
be
granted against HomEq.
standing
to assert any
assigned
any second
three-year
claim
against HomEq
mortgage loan made
statute of limitations set
that their loan
was
not
forth in Mo.Rev.Stat.
never
by
against HomEq
The Missouri Court of
that if the loan obtained
Section !602,
any law that
et seq.,
a
"assignees
prescribed by
loan,
a
by
was
and
Equity Protection
subject
against
the
original
§ 516.420,
subject
to the
the
three-year
and
was
subject
HomEq,
as
Therefore, based
on
Act
as
("HOEPA"),
to all claims and
the
is not
of
statute
therefore
to
HomEq
was
a
15 U.S.C.
defenses under
lender." Schwartz
v.
Bann-Cor
Court of Am•eals held that because
to
an
the
six-year
limitations
alleged assignee
six-year limitations period. However,
the Schwartzes' admission and the
-25-
by
the Court
were
on
2007, Plaintiffs John A. and Jeannette A. Schwartz admitted that their loan does
HOEPA loan.
HomEq
§ 516.420. Accordingly,
are
it
was
their admission
on
the Court held that
of mortgage loans
"moneyed corporation,"
also
barred
are
Plaintiffs John A. and Jeannette A. Schwartz
168, 179 (Mo. Ct_ App. 2006). The
Mo.Rev.Stat.
claims
governed by
were
or
Bann-Cor.
later reversed the Court's dismissal
borrower could have asserted
S.W.•._
was
Appeals
Ownership
HOEPA loan under the Home
held, purchased,
§ 516.130(2) and that those claims
limitations set forth in Mo.Rev.Stat.
time-barred.
September 7, 2004,
legal
Jensen lack
§ 516.130(2) based
fbr the purposes of Mo.Rev.Stat.
found that the Schwartzes' claims
Bann-Cor
HomEq
these individuals
to
HOEPA loan. On
a
"moneyed corporation"
reasoning
because
Plaintiffs John A. and Jeannette A. Schwartzes'
3.
HOEPA
Wong and Daniel and Wanda
Named Plaintiffs James G.
2.
a
claim upon which relief may
to state any
reasoning
of the
period
alleged
December 21,
not
qualify
as a
of the Court of
Appeals,
applied
the
to
three-year
limitations
statute of
§
forth in Mo.Rev.Stat.
HomEq did
5.
HomEq
6.
Complaint
solicit
not
in connection with the
7.
not make the
cannot be
HomEq
or
as an
making
held
for
As
a
9.
was
nor
or
not
alleged
violations
Mortgage
as an
agent of
by
Bann-Cor.
Loan Act because it did
and, in
Jensen
any event, the loans at
Loan Act.
law, Plaintiffs' claims
permits
are
a
not
cognizable
lender to make
a
under the Missouri
seco_n_d mortgage loan
federal law.
involved in any of the
alleged wrongful conduct,
of the loans made to Named Plaintiffs James G.
Jensen, and has
no
knowledge
Loan Act.
did Bann-Cor act
alleged assignee
of the conduct
Therefore, HomEq has been improperly joined
dismissal with
statute of limitations
held the second mortgage loans made to
never
Mortgage
Act because the Act
with other state
Mortgage
for any
matter of
HomEq
five-year
the
of the second mortgage loans to the Named Plaintiffs.
second mortgage loans at issue, it
Mortgage Loan
complies
agent of Bann-Cor,
vicariously liable
issue do not violate the Missouri Second
that
asserting
are
make any of the Named Plaintiffs' second mortgage
did not violate the Missouri Second
Named Plaintiffs James G.
8.
by
is barred
violate the Missouri Second
not
did not act
Accordingly, HomEq
Second
be
516.120.
Therefore, HomEq did
HomEq,
§ 516.130(2) should
Any purported civil conspiracy claim that the Named Plaintiffs
the first time in their Fifth Amended
loans.
Mo.Rev.Stat.
against HomEq•
bar the Schwartzes' claims
4.
set
set forth in
alleged
as a
prejudice.
-26-
was
not
an
in Plaintiffs' Fifth Amended Petition.
defendant and
hereby
demands its immediate
Named Plaintiffs
10.
inadequate
are
representatives
class
they
in that
have raised
individual, non-class claims.
To the extent Plaintiffs seek to maintain this action
11o
claims should be dismissed and the
putative
but not limited to the
requirements
of
representation, predominance, superiority
to arbitrate
agreement
with Bann-Cor
class action, Plaintiffs'
of class
certification, including
numerosity, commonality, typicality, adequacy
and
or
prerequisites
the
of
manageability.
To the extent the Named Plaintiffs
12.
a
class should not be certified under Missouri Rule
satisfy
52.08 because Plaintiffs have failed to
as
or
any member of the
putative
class
signed
an
are
subject
to
defendant, Plaintiffs' claims
any other
binding arbitration.
was
on
13.
To the extent that any of the Named Plaintiffs
actual
or
mortgage loan
by
be barred
at issue and
has
the doctrines of
estoppel,
previously pnr•n•d
judicially determined,
collateral
delayed filing
some
or
claim,
or
her
waiver
or
laches.
.•n.y claims
Court in In
re
any member of the
issue when he
his
against
some
putative
are
and/or
not
res
putative
class
or
she entered into the second
or
all of Plaintiffs' claims may
class
or
his
or
her co-borrower
Ba•Ln-Cor and such claims have been
all of such individuals' claims may be barred
estoppe!/issue preclusion
determinations may include, but
Bankruptcy
at
To the extent that any member of the
14.
already
constructive notice of the fees
or
by
judicata/c!aim preclusion.
limited to, the orders and
judgments
the doctrines of
Such
judicial
of the United States
FirstPlus Financial, Inc., Case No. 99-31869-HCA, Northern District
of Texas.
-27-
purchasers
not
fi•r value
assume
or
holders in due
the burdens
occurring prior
purchase
apply
Plaintiffs' claims under Missouri law do not
15.
to any
course.
obligations
or
of
Moreover, under the
to
assignees, good
law, assignees do
common
assignors and, particularly, alleged
alleged assignment.
As set forth elsewhere
faith
violations of law
herein, HomEq did
the second mortgage loans made to the Named Plaintiffs James G.
Wong
or
not
Daniel and
Wanda Jensen•
16.
As
a
matter of
law, the second mortgage loans
outstanding principal
either because the Plaintiffs have failed to tender the
already
such loans
have been
Because
17.
paid
HomEq did
be held liable under any
because
or
not
purchase
theory
of
Wong
HomEq
18.
Daniel and Wanda Jensen,
or
assignee liability
on
HomEq
cannot
raises any and all defenses afforded under the Second
lender, alleged assignee
Some
9.
specifically
assume
ordinary
or
any
or
alleged
and reasonable
care.
Mortgage
Loan Act
loan servicer.
a!! of Plaintiffs' claims
Plaintiffs' claims
20.
are
barred
as
to
HomEq
in that
HomEq
did not
contractual liabilities.
are
barred in whole
Plaintiffs read,
or
in part because of their failure to exercise
signed
and
thereby
consented to the loan
agreements which they allege violated Missouri law. Had Plaintiffs exercised reasonable
they
by
or
Named Plaintiffs.
to these
to any
balance
off.
Bann-Cor to the Named Plaintiffs James G.
possibly
at issue may not be rescinded
would
or
should have
recognized
the
allegedly
payment of such fees.
-28-
excessive fees and refused to consent
care,
to
the
To the extent that Plaintiffs
21.
or
any member of the
higher
benefits of their second mortgage loans and/or refinanced
claims
are
barred in whole
they
if any, because
Any loss
23.
acts
or
are
or
are
barred in whole
or
notified
or
were
alleged losses,
damage suffered by Plaintiffs
defaulted, renegotiated
or
or
in part,
HomEq
the
debt, Plaintiffs'
cost consumer
enrichment.
in part for failure to
they realized
that
a
mitigate
their
might
exist
claim
was
a
direct and
proximate
result of the
is not liable.
or
any of the members of the
putative
class
off their second mortgage loans at issue, Plaintiffs' claims
paid
estoppel,
the doctrines of accord and satisfaction,
by
accepted
class
if any.
To the extent that any of the Plaintiffs
barred, in whole
unjust
the doctrine of
Plaintiffs
omissions of others for which
24.
have
once
failed to minimize their
by
in part
Plaintiffs' claims
22.
damages,
or
putative
ratification
and novation.
Plaintiffs have failed to
25.
full and
just adjudication
plaintiffs, including
join
indispensable parties required
all necessary and
of the claims in this action. To the extent that there
co-borrowers
or
co-obligors,
defendants
or
just adjudication
Plaintiffs' claims for
26.
applicable
process
Eighth
without the risk of
law
or
afforded
punitive
alternative,
statute or, in the
protections
multiple
by the
or
must be
joined
a
purported
other
other persons who
respect responsible for Plaintiffs' alleged damages, then those persons
fair and
are
for
are
in any
to ensure
a
inconsistent results.
or
exemplary damages
are
unconstitutional insofar
are
barred
as
they
or
reduced
by
violate the due
United States Constitution, the excessive fines clause of the
Amendment of the United States Constitution, the Commerce Clause of the United States
Constitution, the Full Faith and Credit Clause of the United States Constitution, and applicable
provisions
of the Constitution of the State of Missouri.
-29-
Any law,
statute
or
other
authority
purporting
and
permit
to
applied,
as
damages and/or
the amount, if any;
advance notice
as
permit
recovery of
conduct
that
directed,
not
may
permit
compensatory damages, if
or
or
to
any;
applied by
standards
to be
(7)
constitutionally
(8) otherwise
and
Farm Ins. Co.
v.
determining
on
did
not
with
cause
harm,
in
amount
proximately
punitive damages
an
(5) unconstitutionally
permit jury
may
to
or
Plaintiff; (4)
that is not both
to
the amount of
consideration of
worth
net
defendants; (6) lacks constitutionally sufficient
to
post-verdict
review of any
appellate
satisfy Supreme
precedent, including,
538 U.S.
may
applicable law,
complied
sufficient standards for
Campbell,
provide adequate
the amount of harm, if any, to Plaintiff and
relating
punitive
whether to award
punitive damages; (3) unconstitutionally
conduct that
based
the trial court in
fails to
unconstitutional, facially
is
case
is void for vagueness in that it failed to
recovery of
other financial information
lacks
discretion in
what conduct will result in
proportionate
reasonable and
(2)
punitive damages
was
unconstitutionally
jury's
and restrain the
to
in this
that, without limitation, it: (i) lacks constitutionally sufficient
to the extent
guide
standards to
punitive damages
the recovery of
Court
408, 123 S.Ct.
review of
punitive damages award;
punitive damages awards;
without limitation, State
(2003), BMW ofNorth America,
1513
Gore, 517 U.S. 559, ! !6 S.Ct. !589 (1996), and Paci•c Mutual Life Ins. Co.
w
Haslip,
Inc.
v.
499
1, 111 S.Ct. 1032 (1991). Plaintiffs' claim for punitive damages is, and any award of punitive
damages in
this
case
would
absent class members who
be, unconstitutional insofar
are
not
called to
testify
for Bann-Cor's conduct related to transactions
were
an
directly involved. Philip
award of
punitive damages
Morris USA
v.
on
as
such
damages
are
sought
in this action and who seek to
on
behalf of
punish HomEq
which neither the named Plaintiffs
nor
HomEq
Williams, 127 S. Ct. 1057 (U.S. 2007). Moreover,
in addition to any
alleged statutory penalty
and violative of the United States Constitution and the
-30-
applicable provisions
would be excessive
of the Constitution
of the State of Missouri.
provide
does not
In
addition, R.S. Mo. § 408.236 is unconstitutionally
affirmative
an
of action for recovery of interest
cause
vague in that it
paid
and/or future
interest.
on
The
on
interstate
HomEq constitutes
of Missouri law to
place
of Missouri law in this instance would and will
and other defendants that
involving
market for and transactions
Act discriminates
an
unreasonable restraint
in violation of the Commerce Clause of the United States Constitution.
commerce
application
HomEq
application
The
27.
against
interstate
are
engaged
in interstate
unduly
and/or
commerce
with respect to the
The Missouri Second
second mortgages.
commerce
unconstitutional restraints
burdens interstate
Mortgage
Loan
commerce
such
that the Act is violative of the United States Constitution.
28.
with such claims may not be recovered
not
through
entitled to pursue claims for statutory
29.
Mortgage
Plaintiffs' claims
Loan Act
30.
to
a
ofMo. Rev. Stat.
This
sufficiently alleged
pursuant
or•
Court
nor
the Missouri
can
written
§§
a
class action. As
penalties
in
an
barred to the
are
the result of
was
committed in reliance
provisions
cognizable claims,
To the extent that Plaintiffs have any
an
alleged
extent
should be dismissed
as a
associated
of law, Plaintiffs
are
that any violation of the Second
error
of
computation
or was
of the Missouri Division of Finance of the
408.231 to 408.241.
lacks
they
long-arm
constitutional standards.
penalties
class action.
personal jurisdiction
prove that
statute.
HomEq
over
is
HomEq.
subject
to
Moreover, HomEq does
Accordingly, HomEq
defendant.
-31-
is not
subject
Plaintiffs
jurisdiction
not
have
not
in this action
have sufficient minimum
personal jurisdiction according
contacts with the state of Missouri to allow the Court to exercises
to
matter
a
accidental and bona fide
interpretation
the
to
jurisdiction
in this action and
Plaintiffs' John A. and Jeannette A. Schwartz have admitted that their loan does
31.
not
qualify
("HOEPA"),
as
15 U.S.C. Section
32.
As
a
matter of
cognizable against HomEq
fees" test
as
loan under the Home
HOEPA
a
1602,
Ownership
Equity
and
Protection Act
et seq.
law, Plaintiffs' John A. and Jeannette A. Schwartz's claims
"points
and
("HOEPA"),
15
because their loan does not meet either the APR test
defined under the Home
Ownership
Equity
and
Protection Act
not
are
or
U.S.C. Section 1602, etseq.
Plaintiff James G.
33.
direct
or
personal
dismissed with
34.
have
no
claim
prejudice
Wong
lacks
standing
to
against HomEq. Accordingly,
and he cannot
sue
Plaintiff
p-utative
serve as a
class
direct
or
personal
claim
class
35.
representative
alleged
if any, should be
in this action.
HomEq because they
against HomEq. Accordingly,
Plaintiffs Daniel and
to
prejudice
and
they
cannot
serve
as a
in this action.
Plaintiffs' claims
the terms of their
representative
no
sue
Wanda Jensen's claims, if any, should be dismissed with
putative
because he has
Wong's claim,
standing
Plaintiffs Daniel and Wanda Jensen lack
alleged
HomEq
are
barred
as
to
HomEq
because Plaintiffs
voluntarily agreed
to
loans, understood the facts underlying their loan transactions, and willingly
entered into their loan transactions.
36.
Because the United States District Court for the Western District of
01-0980-CV-W-6, has already determined that 15 U.S.C. Section 1641(d) does
independent
basis of
federal law of the
liability against HomEq,
Plaintiffs' claims
case.
-32-
against HomEq
are
Missouri, No.
not create
an
by
the
barred
To the extent that
37.
recovery of any nature
and
assigned
revealed
to
on
HomEq,
any loan made
any such
HomEq
did not
39.
HomEq
reserves
and
as
is held liable for any type
by
damages
charge,
38.
during discovery
HomEq
the
Bann-Cor to Plaintiffs
are
contract
right
limited
by
for,
receive any
to assert
or
or
or
any
form of
putative
15 U.S.C. Section 1641
challenged
damages
or
class member
(d)(2).
fee.
additional affirmative defenses
as
may be
justice requires.
WHEREFORE, The HomEq, LLC, f/k/a The HomEq, Inc., respectfully requests this
Court to enter
Dated:
judgment
February 29,
2008
in favor of it and
against
Plaintiffs.
Respectfully Submitted,
Rasmussen, Willis, Dickey, and Moore, L.L.C.
By:
Randolph G. Willis, M•o. Bar # 47834
Bradley Raple, Mo. Bar # 58634
9200 Ward Parkway, Suite 310
Kansas City, Missouri 64114
Telephone: (816) 960-1611
Facsimile: (816) 960-1669
Of Counsel:
Thomas L. Allen, Pa. Bar # 33243
Roy W. Arnold, Pa. Bar # 70544
Lyle D. Washowich, Pa. Bar # 84348
REED SMITH LLP
A"• 5 •,+1•
A•,•,,
Pittsburgh, PA 15219
Telephone: (412) 288-3131
Facsimile: (412) 288-3063
Attorney for Defendant Wachovia Equity Servicing,
LLC, as successor to HomEq Servicing Corporation,
f/k/a TMS Mortgage, Inc.
-33-
CERTIFICATE OF SERVICE
hereby ce•ify that a true and correct copy of the foregoing D@ndant Wachovia EquiO•
Servicing, LLC's, as successor to HomEq Servicing Corporation, Answer and Afftrmative
Defenses to Plaintiff's Fifth Amended Petition was sent via hand-delivery, this 29th day of
February 2008, to:
!
Hodes, Esq.
Walters, Bender, Strohbehn and Vaughan, P.C.
Garrett M.
2500 City Center Square
12th and Baltimore
P. O. Box 26188
Kansas City, Missouri 64 96
Attorneys for Plaintiffs
with
a
representative
copy mailed to:
Bann-Cor Mortgage
26431 Crown Valley Parkway
Suite 100
Missouri Viejo, California 92691
Master Financial, Inc.
Master Financial Asset Securitization Trusts
505 City Parkway West, Suite 800
Orange, California 92868
1997-1, 1998-1, 1998-2
AttorA•y for,.,fl•Sefen•nt
Equity
Servicing, LLC, as successor to HomEq
Servicing Corporation, f/k/a TMS Mortgage,
An
Inc.
Wachovia

Corporation, f/k/a TMS Mortgage, Inc., ("HomEq") by its counsel, files

Transcription

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