V. Quicken Loans, Inc.

Western District of Texas, txwd-5:2019-cv-00697

Defendant's ANSWER to Complaint by Quicken Loans, Inc.

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0 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION PABLO E. GAY and ANNA J. SUBIA § aka ANNA J. SUBIA-GAY, § § Plaintiffs, § § v. § Case No. 5:19-cv-00697-OLG § QUICKEN LOANS INC., § § Defendant. § § DEFENDANT QUICKEN LOANS INC.'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES Defendant Quicken Loans Inc. ("Quicken Loans") hereby provides its Original Answer and Affirmative Defenses to the claims and allegations of Pablo Gay and Anna Subia-Gay ("Plaintiffs") in the Plaintiff's Original Petition (the "Complaint"). Except as specifically admitted herein, each and every allegation in the Complaint is denied, and Quicken Loans expressly denies that the Complaint states a cognizable claim. Quicken Loans responds to the individually numbered and other paragraphs of the Complaint as follows: In response to the first unnumbered paragraph of the Complaint, Quicken Loans denies all allegations directed to it and states that the remaining allegations are introductory and conclusory in nature and therefore require no response. To the extent the remaining allegations may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. Further answering, Quicken Loans notes that the first unnumbered paragraph of the Complaint refers to an "Application for Temporary Restraining Order, Temporary Injunction, and 0 Permanent Injunction" that has not been filed in this action since removal to this Court. Moreover, there is no temporary restraining order or preliminary injunction in place. 1. Quicken Loans denies the allegations in paragraph 1. Discovery should be conducted under the Federal Rules of Civil Procedure. 2. Quicken Loans admits the allegations in paragraph 2. 3. In response to paragraph 3, Quicken Loans admits it has done business in the State of Texas and has a registered agent for service of process. Quicken Loans denies the remaining allegations in paragraph 3. 4. Quicken Loans denies the allegations in paragraph 4. This Court has subject matter jurisdiction over the claims at issue in this case. 5. In response to paragraph 5, Quicken Loans admits it has done business in the State of Texas and that this Court has jurisdiction over Quicken Loans. Quicken Loans denies the remaining allegations in paragraph 5. 6. Quicken Loans denies the allegations in paragraph 6. Venue is proper in this Court. 7. In response to paragraph 7, Quicken Loans admits a foreclosure sale was scheduled. Quicken Loans denies the remaining allegations in paragraph 7. 8. Quicken Loans denies the allegations in paragraph 8. Plaintiffs' claims are without merit. 9. In response to paragraph 9, Quicken Loans admits only that it provided a mortgage to Plaintiffs with respect to the property identified in paragraph 9. Quicken Loans denies the remaining allegations in paragraph 9. 10. In response to paragraph 10, Quicken Loans admits only that the mortgage it provided to Plaintiffs was in the original principal amount of $104,250.00. Quicken Loans denies the remaining allegations in paragraph 10. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 2 0 11. In response to paragraph 11, Quicken Loans admits only that Plaintiffs have sought several loan modifications from Quicken Loans, all of which have been properly responded to by Quicken Loans. Quicken Loans denies the remaining allegations in paragraph 11. 12. In response to paragraph 12, Quicken Loans admits only that Plaintiffs are in default under the terms of their mortgage with Quicken Loans, and that foreclosure proceedings have been initiated. Quicken Loans denies the remaining allegations in paragraph 12. 13. Quicken Loans denies the allegations in paragraph 13. Quicken Loans breached no duties to Plaintiffs. 14. Quicken Loans denies the allegations in paragraph 14. Quicken Loans breached no duties to Plaintiffs. 15. Quicken Loans denies the allegations in paragraph 15. Quicken Loans made no misrepresentations to Plaintiffs. 16. Quicken Loans denies the allegations in paragraph 16. Quicken Loans performed its duties. 17. Quicken Loans denies the allegations in paragraph 17. Quicken Loans was not negligent and made no misrepresentations to Plaintiffs. 18. Quicken Loans denies the allegations in paragraph 18. Quicken Loans neither breached the loan documents nor violated applicable law. 19. Quicken Loans denies the allegations in paragraph 19. Any damages suffered by Plaintiffs are the consequences of their own actions. 20. Paragraph 20 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 20 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 3 0 21. Paragraph 21 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 21 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. 22. In response to paragraph 22, Quicken Loans admits the Deed of Trust gives the borrower a right to reinstate after acceleration if the borrower meets certain conditions. Plaintiffs failed to meet those conditions. Quicken Loans denies the remaining allegations in paragraph 22. 23. Quicken Loans denies the allegations in paragraph 23. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. 24. Quicken Loans denies the allegations in paragraph 24. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. 25. Paragraph 25 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 25 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. 26. Quicken Loans denies the allegations in paragraph 26. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with applicable law. 27. Quicken Loans denies the allegations in paragraph 27. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 4 0 28. Quicken Loans denies the allegations in paragraph 28. Quicken Loans has at all times complied with the Deed of Trust and applicable law. 29. Quicken Loans denies the allegations in paragraph 29. Quicken Loans has at all times complied with the Deed of Trust and applicable law. 30. Quicken Loans denies the allegations in paragraph 30. Quicken Loans has at all times complied with the Deed of Trust and applicable law, and any damages suffered by Plaintiffs are the consequences of their own actions. 31. Paragraph 31 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 31 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. 32. Quicken Loans denies the allegations in paragraph 32. Plaintiffs have no legal or contractual basis to recover attorney's fees from Quicken Loans. Quicken Loans will be seeking recovery of its attorney's fees against Plaintiffs under the loan documents, state law, and/or federal law, including but not limited to Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. 33. Paragraph 33 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 33 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. Furthermore, a request for disclosure is a form of written discovery under the Texas Rules of Civil Procedure that is not available under the Federal Rules of Civil Procedure. Quicken Loans Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 5 0 objects to this discovery request and expressly reserves all specific objections and other rights under the Federal Rules of Civil Procedure. 34. Paragraph 34 contains no allegations of fact directed to Quicken Loans requiring a response, and otherwise states conclusions of law to which no response is required. To the extent Paragraph 34 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. 35. Quicken Loans denies the allegations in paragraph 35. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. 36. Quicken Loans denies the allegations in paragraph 36. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. 37. Quicken Loans denies the allegations in paragraph 37. Quicken Loans was within its rights in seeking foreclosure and has at all times complied with the Deed of Trust and applicable law. 38. Quicken Loans denies the allegations in paragraph 38. Plaintiffs' claims are without merit. 39. Quicken Loans denies the allegations in paragraph 39. Quicken Loans was within its rights in seeking foreclosure, Quicken Loans has at all times complied with the Deed of Trust and applicable law, and any harm suffered by Plaintiffs is the consequence of their own actions. 40. Quicken Loans lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 40 and, therefore, denies those allegations. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 6 0 41. Quicken Loans denies the allegations in paragraph 41. Quicken Loans was within its rights in seeking foreclosure, Quicken Loans has at all times complied with the Deed of Trust and applicable law, and any harm suffered by Plaintiffs is the consequence of their own actions. Therefore, the public interest would not be served by issuance of an injunction in this Court. 42. Quicken Loans lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 42 and, therefore, denies those allegations. If Plaintiffs are required to post a bond, however, the amount of the bond should be no less than the total amount owed to Quicken Loans. 43. Quicken Loans denies the allegations in paragraph 43. Plaintiffs are not entitled to any injunctive relief. 44. Paragraph 44 contains no allegations of fact directed to Quicken Loans requiring a response. To the extent Paragraph 44 may be construed to contain allegations of fact directed to Quicken Loans requiring a response, Quicken Loans denies those allegations. 45. Quicken Loans denies the allegations in paragraph 45. Quicken Loans was within its rights in seeking foreclosure, Quicken Loans has at all times complied with the Deed of Trust and applicable law, any harm suffered by Plaintiffs is the consequence of their own actions, and Plaintiffs are not entitled to any injunctive relief in this Court. 46. Quicken Loans denies the allegations in paragraph 46. Quicken Loans was within its rights in seeking foreclosure, Quicken Loans has at all times complied with the Deed of Trust and applicable law, any harm suffered by Plaintiffs is the consequence of their own actions, and Plaintiffs are not entitled to any injunctive relief in this Court. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 7 0 47. Quicken Loans denies the allegations in paragraph 47. Quicken Loans was within its rights in seeking foreclosure, Quicken Loans has at all times complied with the Deed of Trust and applicable law, any harm suffered by Plaintiffs is the consequence of their own actions, and Plaintiffs are not entitled to any injunctive relief in this Court. In response to the unnumbered paragraph following paragraph 49 that begins with the word "WHEREFORE," Quicken Loans denies that Plaintiff is entitled to any relief in this lawsuit. AFFIRMATIVE DEFENSES FIRST DEFENSE The Complaint fails to state a claim upon which relief may be granted. SECOND DEFENSE Plaintiffs lack standing to pursue the claims in the Complaint because Plaintiffs have suffered no cognizable injury fairly traceable to the challenged conduct. THIRD DEFENSE Some or all of the relief Plaintiffs seek is not available as a matter of law. FOURTH DEFENSE Plaintiffs' injuries were caused by Plaintiffs' own negligence. FIFTH DEFENSE Plaintiffs' claims are barred by equitable estoppel. SIXTH DEFENSE Plaintiffs' claims are barred because of Plaintiffs' prior material breach of the loan documents. SEVENTH DEFENSE Plaintiffs' claims are barred because of Plaintiffs' failure to perform conditions precedent. Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 8 0 EIGHTH DEFENSE Plaintiffs' claims are barred because of Plaintiffs' unclean hands. NINTH DEFENSE Plaintiffs' claims against Quicken Loans fail because Plaintiffs can remedy their breach of the loan documents by complying with Tex. Prop. Code Ann. § 51.002(d), but Plaintiffs have failed to do so. TENTH DEFENSE Plaintiffs' claims are barred by justification because Quicken Loans was exercising (1) its own legal rights; or (2) a good-faith claim to a colorable legal right. RESERVATION OF RIGHTS Quicken Loans expressly reserves its right to amend this Original Answer and Affirmative Defenses, including, but not limited to, by asserting additional defenses or making additional claims or counterclaims for further relief, as discovery in this action shall warrant, or in the event of any future change in the nature or scope of this lawsuit. REQUEST FOR ATTORNEY'S FEES Quicken Loans requests an award of its attorney's fees against Plaintiffs under the loan documents, state law, and/or federal law, including but not limited to Fed. R. Civ. P. 11 and 28 U.S.C. § 1927. PRAYER FOR RELIEF WHEREFORE, having fully answered the Complaint, Quicken Loans prays for relief as follows: A. That Plaintiffs take nothing by way of the Complaint; Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 9 0 B. That the Complaint be dismissed in its entirety with prejudice, and that judgment be entered in favor of Quicken Loans; C. That Quicken Loans be awarded its costs and expenses of suit incurred herein, including reasonable costs and attorneys' fees; and D. For such other and further relief as this Court deems just and proper. Respectfully submitted, By: /s/ Jacob Sparks Jacob Sparks Texas Bar No. 24066126 SPENCER FANE LLP 5700 Granite Parkway, Suite 650 Plano, Texas 75024 Tel: (214) 750-3624 Fax: (214) 750-3612 Email: JSparks@SpencerFane.com Attorneys for Quicken Loans Inc. CERTIFICATE OF SERVICE I hereby certify that on the 9th day of August 2019, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following: Robert Clarence Newark, III Newark Law Offices 1341 W. Mockingbird Lane Ste 600W Dallas, TX 75246 866-230-7236 Fax: 888-316-3398 Email: office@newarkfirm.com By: /s/ Jacob Sparks Jacob Sparks Defendant Quicken Loans Inc.'s Original Answer and Affirmative Defenses Page 10