Plaintiff's Reply to Answer and Counterclaim

Transcript

1 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 TH STATE OF SOUTH CAROLINA THI R T EEN JUDICIAL CIRCUIT IN THE COURT OF COMMON PLEAS COUNTY OF GREENVILLE - CP - C/A No.: 2017 - 23 07130 US Bank National Association, as Successor Trustee, to Bank of America, National Association, successor by merger to LaSalle PLAINTIFF’S REPLY TO THE National Association, as Trustee for Ownit Mortgage Loan Trust, Mortgage Loan Asset DEFENDANT’S ANSWER AND - - 5, COUNTERCLAIM Backed Certificates, Series 2006 Plaintiff, v. Kevin M Willson; John C. Holman; Mortgage Electronic Registration Systems, Inc.; Ocwen Loan Servicing, LLC s/b/m to Ownit Mortgage Solutions, Inc., . Defendants : KEVIN WILLSON SHAWN M FRENCH, SR., ATTORNEY FOR DEFENDANT TO: The Plaintiff, responding to the Answer and Counterclaim of Defendant Kevin Willson (hereinafter the “Defendant”) respectfully alleges as follows: 1. All proceedings in this matter are currently stayed for foreclosure intervention 01. This Reply is being me Court Administrative Order 2011 - 05 - 02 - review pursuant to SC Supre submitted to protect Plaintiff’s interests . That each allegation of the Answer and Counterclaim not specifically admitted is 2. denied and strict proof of the same is demanded. 3. No response is required to the allegations contained in Paragraphs One (1) through consist of Defendant’s Thirty as they - Seven ( 37 ) of Defendant’s Answer and Counterclaim response and asserted affirmative defenses to the allegations contained in Plaintiff’ s Complaint . To the extent a response is required, and to the extent that that the aforementioned paragraphs same in full and demands strict denies contain any allegations of wrongdoing by Plaintiff ; Plaintiff and absolute proof thereof . 19160 FC02 23 - CP - - 07130 Page 1 of 6 B&S File No.: 13 - C/A No.: 2017 *DID200049* *CID618556*

2 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 DEFENDANT’S COUNTERCLAIM (S) SE TO A FIRST DEFEN AS To the extent that they are not inconsistent with the pleadings herein, the above 4. ) are incorporated herein as if fully repeated verbatim. 3 ( Three Paragraphs One (1) through 5. Eight (38) through - Thirty s Paragraph Plaintiff denies the allegations contained in the Defendant’s Answer and Counterclaim in full and demands strict and 1 (4 One - Forty ) of absolute proof thereof. Plaintiff can neither admit nor deny the allegations contained in Paragraph Forty 6. - Answer and Counterclaim as they are matters of statutory and/or case Two (42) of Defendant’s law interpretation and constitute legal conclusions. To the extent that a response is required, Plaintiff denies same in full and demands strict and absolute proof thereof. 7. The allegatio ns contained in Paragraph Forty - Three (43) of Defendant’s Answer and Counterclaim do not require a response . 8. Plaintiff can neither admit nor deny the allegations contained in Paragraph Forty - matters of statutory and/or case Four (44) of Defendant’s Answer and Counterclaim as they are law interpretation and constitute legal conclusions. To the extent that a response is required, Plaintiff denies same in full and demands strict and absolute proof thereof . 9. Plaintiff denies the allegations contained in Par agraphs Forty - Five (45) and Forty - Six (46) of Defendant’s Answer and Counterclaim in full and demands strict and absolute proof thereof. AS A SECOND DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Dismissal pursuant to SCRCP 12(b)(6)) 10. To the extent that they are not inconsistent with the pleadings herein, the above Paragraphs One (1) through Nine ( 9 ) are incorporated herein as if fully repeated verbatim. 11. Defendant has failed to state a cause of action upon which relief may be granted and, as such, Defendant’s Answer and Counterclaim should be dismissed pursuant to Rule 12(b)(6) of the South Carolina Rules of Civil Procedure. 2 Page 07130 - 23 - CP - 19160 FC02 B&S File No.: 13 6 - of C/A No.: 2017

3 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 Further, by pleading this 12(b)(6) dismissal in their Reply herein, Plaintiff does not 12. motion for dismissal. The dismissal herein is intend to waive any right to have the Court hear a time included for notice purposes and to preserve Plaintiff’s right to move for a dismissal at any hereafter and up until trial. AS A THIRD DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Unclean Hands) To the 13. extent that they are not inconsistent with the pleadings herein, the above ) are incorporated herein as if fully repeated verbatim. Paragraphs One (1) through Twelve ( 12 Upon information and belief, Defendant’s claims are barred by their own actions 14. and/or representations. 15. Plaintiff has been injured by Defendant’s actions and/or representations. 16. Defendant has failed to adhere to the terms and conditions set forth in the subject Note and Mortgage. 17. aims are barred by the As a result of Defendant’s inequitable actions, Defendant’s cl equitable doctrine of unclean hands. AS A FOURTH DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Offset) 18. To the extent that they are not inconsistent with the pleadings herein, the above Paragraphs One (1) through ( 17 ) are in corporated herein as if fully repeated verbatim. Seventeen 19. To the extent that Defendant is entitled to any recovery from Plaintiff, such amounts should be reduced and offset by the damages suffered by Plaintiff arising from the claims set forth in Plaintiff’s Compla int. AS A FIFTH DEFENSE TO THE DEFENDANTS’ COUNTERCLAIM(S) (Waiver/Laches/Estoppel) 6 of 3 Page 07130 - - 23 - - CP 19160 FC02 B&S File No.: 13 C/A No.: 2017

4 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 20. To the extent that they are not inconsistent with the pleadings herein, the above Paragraphs One (1) through erbatim. ) are incorporated herein as if fully repeated v 19 ( Nineteen Defendant’s claims are barred by the doctrines of waiver, laches, and estoppel. 21. AS A SIXTH DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Dismissal for Failure to Bring Action Within Applicable Statute of Limitations) 22. To the extent that they are not inconsistent with the pleadings herein, the above ( ) are hereby incorporated herein as if fully repeated Paragraphs One (1) through Twenty - One 21 verbatim. applicable statute(s) of 23. Defendant has failed to bring his cause of action within the limitation and as such their claims should be dismissed. Further, by pleading this dismissal in their Reply herein, Plaintiff does not intend 24. to waive any right to have the Court hear a motion for dismissal. The dismissal herein i s included for notice purposes and to preserve Plaintiff’s right to move for a dismissal at any time hereafter and up until trial. AS A SEVENTH DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Statute of Frauds) 25. To the extent that they are not inconsistent wi th the pleadings herein, the above Paragraphs One (1) through Twenty - Four ( 24 ) are hereby incorporated herein as if fully repeated verbatim. Defendant’s Counterclaims are barred by the Statute of Frauds. 26. AS AN EIGHTH DEFENSE TO THE DEFENDANT’S COUNTERCLAI M(S) (Compliance with Applicable Law) 27. To the extent that they are not inconsistent with the pleadings herein, the above Paragraphs One (1) through Twenty - Six ( 26 ) are hereby incorporated herein as if fully repeated verbatim. - - - CP 19160 FC02 B&S File No.: 13 6 of 4 Page 07130 - 23 C/A No.: 2017

5 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 28. with regard to Plaintiff or procedures followed by Any and all actions taken and/ the loan at issue in this foreclosure action were authorized by contract and/or law, were undertaken in good faith and in a reasonable and timely manner. Accordingly, Defendant’s counterclaims should be d ismissed. AS A NINTH DEFENSE TO DEFENDANTS’ COUNTERCLAIM(S) (Failure to Perform/Prior Breach) To the extent that they are not inconsistent with the pleadings herein, the above 29. - are hereby incorporated herein as if fully repeated Eight Twenty Paragraphs One (1) through ( 28 ) verbatim. Defendant failed to comply with and perform the obligations pursuant to the terms 30. and conditions of the Note and Mortgage, which failure constitutes a prior breach of the terms and f the Note and Mortgage. Accordingly, Defendant’s counterclaims should be conditions o dismissed. AS A TENTH DEFENSE TO DEFENDANTS’ COUNTERCLAIM(S) (Compliance with Terms of Note and Mortgage) 31. To the extent that they are not inconsistent with the pleadings herein, t he above Thirty ( 30 ) are hereby incorporated herein as if fully repeated Paragraphs One (1) through verbatim. 32. Plaintiff incorporates by reference all of the terms, conditions, exclusions, exceptions, and limitations of the Promissory Note and Mortgage betw een it and Defendant and would show that it performed all of its obligations under any alleged loan contract and/or in procuring any alleged loan contract. Plaintiff further pleads the terms and conditions of any alleged loan contract as a complete defens e and bar to this action. AS A N ELEVENTH DEFENSE TO THE DEFENDANT’S COUNTERCLAIM(S) (Reservation and Non - Waiver) 23 - - - CP 19160 FC02 B&S File No.: 13 6 of 5 Page 07130 - C/A No.: 2017

6 ELECTRONICALLY FILED - 2018 Aug 28 4:58 PM - GREENVILLE - COMMON PLEAS - CASE#2017CP2307130 To the extent that they are not inconsistent with the pleadings herein, the above 33. Thirty Paragraphs One (1) through Two - by incorporated herein as if fully repeated ( 32 ) are here verbatim. 34. Plaintiff reserves and does not waive any additional and further defenses to Defendant’s Answer and Counterclaim as may be revealed throughout the duration of this litigation. responded to the allegations contained in Defendant’s , having fully WHEREFORE Answer and Counterclaim, Plaintiff prays for the following: (a) That Defendant’s Answer and Counterclaim be dismissed with costs; (b) That Plaintiff be granted the relief requested in the Complaint; Fo r such other and further relief as the Court may determine to be just and proper. (c) s/Chad W. Burgess SC Bar No: 72520 Brock and Scott, PLLC 3800 Fernandina Road, Suite 110 Columbia, South Carolina 29210 - 3540 Telephone: (803) 454 Fax (8 03) 454 - 3541 Attorney for the Plaintiff Dated: August 28, 2018 Columbia, South Carolina 19160 FC02 B&S File No.: 13 6 of 6 Page 07130 - - 23 - - CP C/A No.: 2017

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