Baker v. Specialized Loan Servicing, LLC et al

Western District of Texas, txwd-5:2019-cv-01298

Original ANSWER to [1] Complaint. Attorney Branch Masterson Sheppard added to party Specialized Loan Servicing, LLC(pty:dft), COUNTERCLAIM against Paul E Baker by Specialized Loan Servicing, LLC.

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2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION PAUL E. BAKER, Plaintiff, v. Civil Action No. 5:19-cv-01298-OLG SPECIALIZED LOAN SERVICING, LLC; EQUIFAX INFORMATION SERVICES, LLC; and EXPERIAN INFORMATION SOLUTIONS, INC., Defendants. DEFENDANT SPECIALIZED LOAN SERVICING, LLC'S ORIGINAL ANSWER TO PLAINTIFF'S ORIGINAL COMPLAINT AND COUNTERCLAIM AGAINST PLAINTIFF TO THE HONORABLE JUDGE OF SAID COURT: COMES NOW SPECIALIZED LOAN SERVICING LLC (hereinafter "Defendant") and files this Original Answer to Plaintiff's Original Complaint (the "Complaint") and Counterclaim against Plaintiff Paul E. Baker and, in support hereof, respectfully shows this Honorable Court the following: I. ADMISSIONS AND DENIALS 1. There are no allegations in Paragraph 1 of the Complaint to admit or deny; to the extent a response is required, Defendant denies the allegations. 2. There are no allegations in Paragraph 2 of the Complaint to admit or deny; to the extent a response is required, Defendant denies the allegations. 3. There are no allegations in Paragraph 3 of the Complaint to admit or deny; to the extent a response is required, Defendant denies the allegations. 1 2 4. There are no allegations in Paragraph 4 of the Complaint to admit or deny; to the extent a response is required, Defendant denies the allegations. 5. Defendant denies the allegations in Paragraph 5 of the Complaint. 6. Defendant admits the allegations in Paragraph 6 of the Complaint. 7. Defendant admits the allegations in Paragraph 7 of the Complaint. 8. Defendant can neither admit nor deny the allegations contained in Paragraph 8 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 9. Defendant denies the allegations in Paragraph 9 of the Complaint to the extent that the registered agent is not correct. 10. Defendant can neither admit nor deny the allegations contained in Paragraph 10 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 11. Defendant can neither admit nor deny the allegations contained in Paragraph 11 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 12. Defendant can neither admit nor deny the allegations contained in Paragraph 12 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 13. Defendant can neither admit nor deny the allegations contained in Paragraph 13 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 14. Defendant admits the allegations in Paragraph 14 of the Complaint. 15. Defendant can neither admit nor deny the allegations contained in Paragraph 15 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 16. Defendant denies the allegations in Paragraph 16 of the Complaint. 17. Defendant can neither admit nor deny the allegations contained in Paragraph 17 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 2 2 18. Defendant can neither admit nor deny the allegations contained in Paragraph 18 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 19. Defendant can neither admit nor deny the allegations contained in Paragraph 19 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 20. Defendant can neither admit nor deny the allegations contained in Paragraph 20 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 21. Defendant can neither admit nor deny the allegations contained in Paragraph 21 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 22. Defendant admits the allegations in Paragraph 22 of the Complaint. 23. Defendant can neither admit nor deny the allegations contained in Paragraph 23 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 24. Defendant admits the allegations contained in Paragraph 24 of the Complaint. 25. Defendant can neither admit nor deny the allegations contained in Paragraph 25 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 26. Defendant admits the allegations in Paragraph 26 of the Complaint. 27. Defendant admits the allegations in Paragraph 27 of the Complaint. 28. Defendant denies the allegations in Paragraph 28 of the Complaint. 29. Defendant can neither admit nor deny the allegations contained in Paragraph 29 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 30. Defendant can neither admit nor deny the allegations contained in Paragraph 30 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 31. Defendant can neither admit nor deny the allegations contained in Paragraph 31 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 3 2 32. Defendant admits the allegations in Paragraph 32 of the Complaint. 33. Defendant can neither admit nor deny the allegations contained in Paragraph 33 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 34. Defendant denies the allegations in Paragraph 34 of the Complaint. 35. Defendant denies the allegations in Paragraph 35 of the Complaint 36. Defendant denies the allegations in Paragraph 36 of the Complaint. 37. Defendant denies the allegations in Paragraph 37 of the Complaint. 38. Defendant can neither admit nor deny the allegations contained in Paragraph 38 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 39. Defendant can neither admit nor deny the allegations contained in Paragraph 39 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 40. Defendant can neither admit nor deny the allegations contained in Paragraph 40 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 41. Defendant can neither admit nor deny the allegations contained in Paragraph 41 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 42. Defendant denies the allegations in Paragraph 42 of the Complaint. 43. Defendant can neither admit nor deny the allegations contained in Paragraph 43 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 44. Defendant denies the allegations in Paragraph 44 of the Complaint. 45. Defendant denies the allegations in Paragraph 45 of the Complaint. 46. Defendant denies the allegations in Paragraph 46 of the Complaint. 47. Defendant can neither admit nor deny the allegations contained in Paragraph 47 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 4 2 48. Defendant can neither admit nor deny the allegations contained in Paragraph 48 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 49. Defendant admits the allegations in Paragraph 49 of the Complaint. 50. Defendant can neither admit nor deny the allegations contained in Paragraph 50 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 51. Defendant can neither admit nor deny the allegations contained in Paragraph 51 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 52. Defendant can neither admit nor deny the allegations contained in Paragraph 52 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 53. Defendant denies the allegations in Paragraph 53 of the Complaint. 54. Defendant denies the allegations in Paragraph 54 of the Complaint. 55. Defendant denies the allegations in Paragraph 55 of the Complaint. 56. Defendant denies the allegations in Paragraph 56 of the Complaint. 57. Defendant denies the allegations in Paragraph 57 of the Complaint. 58. Defendant denies the allegations in Paragraph 58 of the Complaint. 59. Defendant denies the allegations in Paragraph 59 of the Complaint. 60. Defendant denies the allegations in Paragraph 60 of the Complaint. 61. Defendant denies the allegations in Paragraph 61 of the Complaint. 62. Defendant denies the allegations in Paragraph 62 of the Complaint. 63. Defendant denies the allegations in Paragraph 63 of the Complaint. 64. Defendant denies the allegations in Paragraph 64 of the Complaint. a. Defendant denies the allegations in Paragraph 64(a) of the Complaint. b. Defendant denies the allegations in Paragraph 64(b) of the Complaint. 5 2 c. Defendant denies the allegations in Paragraph 64(c) of the Complaint. d. Defendant denies the allegations in Paragraph 64(d) of the Complaint. 65. Defendant denies the allegations in Paragraph 65 of the Complaint. 66. Defendant can neither admit nor deny the allegations contained in Paragraph 66 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 67. Defendant can neither admit nor deny the allegations contained in Paragraph 67 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 68. Defendant can neither admit nor deny the allegations contained in Paragraph 68 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 69. Defendant can neither admit nor deny the allegations contained in Paragraph 69 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 70. Defendant can neither admit nor deny the allegations contained in Paragraph 70 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 71. Defendant can neither admit nor deny the allegations contained in Paragraph 71 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 72. Defendant can neither admit nor deny the allegations contained in Paragraph 72 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 73. Defendant can neither admit nor deny the allegations contained in Paragraph 73 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 74. Defendant denies that Plaintiff is entitled to the relief requested in Paragraph 74 of the Complaint. 75. Defendant can neither admit nor deny the allegations contained in Paragraph 75 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 6 2 76. Defendant can neither admit nor deny the allegations contained in Paragraph 76 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 77. Defendant can neither admit nor deny the allegations contained in Paragraph 77 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 78. Defendant can neither admit nor deny the allegations contained in Paragraph 78 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 79. Defendant can neither admit nor deny the allegations contained in Paragraph 79 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 80. Defendant can neither admit nor deny the allegations contained in Paragraph 80 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 81. Defendant can neither admit nor deny the allegations contained in Paragraph 81 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 82. Defendant can neither admit nor deny the allegations contained in Paragraph 82 of the Complaint based on lack of knowledge; accordingly, Defendant denies the allegations. 83. Defendant denies that Plaintiff is entitled to the relief requested in Paragraph 83 of the Complaint. 84. There are no allegations in Paragraph 84 of the Complaint to admit or deny. 85. Defendant denies that Plaintiff is entitled to the relief requested in the Prayer for Relief. II. AFFIRMATIVE DEFENSES 86. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of release. 7 2 87. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense that Plaintiff's claims are barred by contract. 88. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of waiver. 89. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of justification. 90. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of limitations, collateral estoppel, and/or res judicata. 91. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts that there were independent or intervening causes of Plaintiff's damages. 92. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts that their acts were not the producing cause of Plaintiff's damages. 93. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of reliance upon information from other sources pursuant to TEX. BUS. & COM. CODE §17.506(a). 94. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of contributory negligence. Specifically, Plaintiff's alleged damages, if any, were caused solely, or alternatively, in substantial part, by Plaintiff's own negligence or other acts or omissions. Pleading in the alternative, Defendant invokes the provisions of Chapters 32 and 33 of the Texas Civil Practice & Remedies Code, and would show that, to the extent Plaintiff sustained any damages, which is not admitted but is denied, the amount of recovery, if any, must be barred or, alternatively, reduced by Plaintiff's percentage of fault, negligence or responsibility. 8 2 95. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant denies that Plaintiff is entitled to any recovery from Defendant. However, to the extent any recovery is awarded to Plaintiff, such recovery must be offset by any amounts received from joint tortfeasors or other defendants according to their proportionate responsibility under the applicable Texas law. Defendant prays for all credit and/or offset rights at law by virtue of any settlement entered into by Plaintiff with any party or non-party in connection with or relating to any matter pertaining to the claim or claims made herein by Plaintiff. In this regard, Defendant invokes all rights under law, including without limitation, any above-mentioned rights or election of rights provided by §33.014, or otherwise in Chapter 33 of the Texas Civil Practice & Remedies Code, or by any applicable law. 96. If this Court finds that Defendant committed error, pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense of bona fide error. 97. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the defense that the economic loss rule applies and bars Plaintiff from recovery in this litigation. 98. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant asserts the statute of frauds applies in this matter and bars Plaintiff from recovery in this litigation. 99. Pursuant to Rule 8 of the Federal Rules of Civil Procedure, Defendant is entitled to an offset against Plaintiff's damages, if any, for the amount due and owing under the subject Note and Security Instrument. 100. Defendant reserves the right to amend this Answer to assert other and further defenses. 9 2 III. COUNTERCLAIM Frivolous Lawsuit under Texas Law and Reimbursement of Attorneys' Fees and Costs Pursuant to the Note and Deed of Trust 101. Plaintiff's pleadings in this matter violate Tex. Civ. Prac. & Rem. Code §§9.011 et seq. and §§10.001 et seq. because the pleadings are (1) groundless and brought in bad faith; (2) groundless and brought for the purpose of harassment; or (3) groundless and interposed for an improper purpose, such as to cause unnecessary delay and/or needless increase in the cost of litigation. 102. The Note and Security Instrument permit Defendants to recover attorneys' fees and costs. In conjunction with the terms of the Note and Security Instrument, Defendants seek recovery of its reasonable and necessary attorneys' fees, witness fees, costs, fees of experts and deposition expenses, if any. IV. PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that: (1) Plaintiff takes nothing by reason of this suit; (2) The Court award Defendant its reasonable and necessary attorneys' fees and costs incurred in its defense; and (3) Defendant be awarded such other and further relief, at law or in equity, to which it may be justly entitled. Respectfully submitted, By: //s// Branch M. Sheppard Branch M. Sheppard Texas State Bar No. 24033057 bsheppard@gallowaylawfirm.com 10 2 OF COUNSEL: GALLOWAY JOHNSON TOMPKINS BURR & SMITH A Professional Law Corporation Annarose M. Harding Texas State Bar No. 24071438 aharding@gallowaylawfirm.com 1301 McKinney, Suite 1400 Houston, Texas 77010 (713) 599-0700 (Telephone) (713) 599-0777 (Facsimile) ATTORNEYS FOR DEFENDANT, SPECIALIZED LOAN SERVICING LLC 11 2 CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Answer to Plaintiff's Original Complaint and Counterclaim against Plaintiff was delivered via Electronic Filing to the following on this 111th day of December, 2019. VIA ECF WILLIAM M. CLANTON LAW OFFICE OF BILL CLANTON, P.C. 926 CHULIE DRIVE SAN ANTONIO, TEXAS 78216 COUNSEL FOR PLAINTIFF //s// Branch M. Sheppard Branch M. Sheppard 12