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Filed: 5/3/2022 4:34 PM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 64153972
By: Shailja Dixit
Cause No. 22-CV-0757 5/3/2022 4:42 PM
TIMOTHY L. BOURGEOIS and § IN THE DISTRICT COURT
GWEN A. BOURGEOIS, §
Plaintiffs §
§
VS. § 10TH JUDICIAL DISTRICT
§
SELECT PORTFOLIO SERVICING, INC., §
HUGHES, WATTERS & ASKANASE, L.L.P. §
and its agent, ANTHONY ADAN GARCIA §
Defendants § GALVESTON COUNTY, TEXAS
DEFENDANT’S ORIGINAL ANSWER
Select Portfolio Servicing, Inc. (“Defendant”) files this Original Answer to Timothy and
Gwen Bourgeois’ (“Plaintiffs”) Original Petition, and would respectfully show unto the Court as
follows:
GENERAL DENIAL
Defendant, pursuant to Rule 92 of the Texas Rules of Civil Procedure, generally denies
all of the claims as alleged by Plaintiffs and respectfully prays that Plaintiffs be required to prove
their claims as alleged by a preponderance of the evidence or such higher standard as may be
applicable.
AFFIRMATIVE DEFENSES
1. Plaintiffs failed to state a claim upon which relief may be granted and therefore
each of Plaintiffs’ claims should be dismissed.
2. Defendant pleads that Plaintiffs have failed to plead and prove conditions
precedent to recovery herein.
3. Defendant pleads the statute of frauds.
4. Defendant pleads waiver, estoppel and ratification.
5. Defendant pleads a failure of consideration for any breach of contract claim, if
any.
20060161.20220287/4323934.1
6. Defendant pleads that Plaintiffs lacks standing.
7. Defendant pleads the statute of limitations.
8. Defendant plead res judicata and collateral estoppel.
9. Defendant pleads judicial estoppel and all forms of estoppel.
10. Defendant pleads that the “economic loss rule” precludes all tort claims by
Plaintiffs.
11. Plaintiffs’ claims are precluded, in whole or part, because any alleged acts and/or
omissions of Defendant was not the cause of Plaintiffs’ alleged damages. Rather, Plaintiffs’
damages, if any, were proximately caused by the act, omissions or breaches of other persons
and/or entities, including Plaintiffs, and the acts, omissions or breaches were intervening and
superseding causes of Plaintiffs’ damages, if any.
12. Plaintiffs’ damages, if any, were proximately caused by the acts, omissions, or
breaches of other persons and entities, including Plaintiffs, and the acts, omissions, or breaches
were intervening and superseding causes of Plaintiffs’ damages, if any. Defendant pleads
the doctrine of comparative responsibility as provided in Chapter 33 of the TEX. CIV. PRAC. &
REM. CODE, and its application to any tort claim (intentional or otherwise) of the Plaintiffs
that may be alleged against Defendant.
13. Plaintiffs have failed to mitigate their damages, if any.
14. Defendant is not liable for the act, omissions, or conduct of other persons or
entities not authorized to act on behalf of them and Defendant is not liable for the act, omissions
of its agents, if any, who exceeded the scope of their authority.
15. Any claim for punitive or exemplary damages is subject to the limitations and
constraints of Due Process found in the Fifth and Fourteenth Amendments to the United States
Constitution.
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20060161.20220287/4323934.1
16. Defendant pleads bankruptcy tolling, common law tolling, equitable tolling,
abandonment of any alleged acceleration of the subject loan obligations, and all tolling of the
statute of limitations available at law or in equity, including but not limited to tolling under
§16.063 of the Texas Civil Practice and Remedies Code.
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully pray that Plaintiffs
take nothing by reason of the claims alleged against it, that Defendant recovers its taxable court
costs, and that Defendant recover such other and further relief to which this Court deems it to be
justly entitled.
Respectfully submitted,
HIRSCH & WESTHEIMER, P.C.
By: /s/ Michael F. Hord Jr.
Michael F. Hord Jr.
State Bar No. 00784294
Eric C. Mettenbrink
State Bar No. 24043819
1415 Louisiana, 36th Floor
Houston, Texas 77002-2772
713-220-9182 Telephone
713-223-9319 Facsimile
Email: mhord@hirschwest.com
Email: emettenbrink@hirschwest.com
ATTORNEYS FOR DEFENDANT
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20060161.20220287/4323934.1
CERTIFICATE OF SERVICE
I hereby certify that on this 3rd day of May, 2022 a true and correct copy of the foregoing
document was served as follows:
James M. Andersen
17041 El Camino Real, Suite 204
Houston, TX 77058
Phone: (281) 488-2800
Fax: (281) 480-4851
Email: jandersen.law@gmail.com
Via E-Service
/s/ Michael F. Hord Jr.
Michael F. Hord Jr.
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20060161.20220287/4323934.1
Automated Certificate of eService
This automated certificate of service was created by the efiling system.
The filer served this document via email generated by the efiling system
on the date and to the persons listed below. The rules governing
certificates of service have not changed. Filers must still provide a
certificate of service that complies with all applicable rules.
Envelope ID: 64153972
Status as of 5/3/2022 4:43 PM CST
Associated Case Party: TimothyL.Bourgeois
Name BarNumber Email TimestampSubmitted Status
James Michael Andersen 1165850 jandersen.law@gmail.com 5/3/2022 4:34:27 PM SENT
Associated Case Party: Select Portfolio Servicing, Inc.
Name BarNumber Email TimestampSubmitted Status
Eric Mettenbrink emettenbrink@hirschwest.com 5/3/2022 4:34:27 PM SENT
Michael F.Hord mhord@hirschwest.com 5/3/2022 4:34:27 PM SENT
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Filed: 5/3/2022 4:34 PM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 64153972 By: Shailja Dixit Cause No. 22-CV-0757 5/3/2022 4:42 PM TIMOTHY L. BOURGEOIS and § IN THE DISTRICT COURT GWEN A. BOURGEOIS, § Plaintiffs § § VS. § 10TH JUDICIAL DISTRICT § SELECT PORTFOLIO SERVICING, INC., § HUGHES, WATTERS & ASKANASE, L.L.P. § and its agent, ANTHONY ADAN GARCIA § Defendants § GALVESTON COUNTY, TEXAS DEFENDANT’S ORIGINAL ANSWER Select Portfolio Servicing, Inc. (“Defendant”) files this Original Answer to Timothy and Gwen Bourgeois’ (“Plaintiffs”) Original Petition, and would respectfully show unto the Court as follows: GENERAL DENIAL Defendant, pursuant to Rule 92 of the Texas Rules of Civil Procedure, generally denies all of the claims as alleged by Plaintiffs and respectfully prays that Plaintiffs be required to prove their claims as alleged by a preponderance of the evidence or such higher standard as may be applicable. AFFIRMATIVE DEFENSES 1. Plaintiffs failed to state a claim upon which relief may be granted and therefore each of Plaintiffs’ claims should be dismissed. 2. Defendant pleads that Plaintiffs have failed to plead and prove conditions precedent to recovery herein. 3. Defendant pleads the statute of frauds. 4. Defendant pleads waiver, estoppel and ratification. 5. Defendant pleads a failure of consideration for any breach of contract claim, if any. 20060161.20220287/4323934.1 6. Defendant pleads that Plaintiffs lacks standing. 7. Defendant pleads the statute of limitations. 8. Defendant plead res judicata and collateral estoppel. 9. Defendant pleads judicial estoppel and all forms of estoppel. 10. Defendant pleads that the “economic loss rule” precludes all tort claims by Plaintiffs. 11. Plaintiffs’ claims are precluded, in whole or part, because any alleged acts and/or omissions of Defendant was not the cause of Plaintiffs’ alleged damages. Rather, Plaintiffs’ damages, if any, were proximately caused by the act, omissions or breaches of other persons and/or entities, including Plaintiffs, and the acts, omissions or breaches were intervening and superseding causes of Plaintiffs’ damages, if any. 12. Plaintiffs’ damages, if any, were proximately caused by the acts, omissions, or breaches of other persons and entities, including Plaintiffs, and the acts, omissions, or breaches were intervening and superseding causes of Plaintiffs’ damages, if any. Defendant pleads the doctrine of comparative responsibility as provided in Chapter 33 of the TEX. CIV. PRAC. & REM. CODE, and its application to any tort claim (intentional or otherwise) of the Plaintiffs that may be alleged against Defendant. 13. Plaintiffs have failed to mitigate their damages, if any. 14. Defendant is not liable for the act, omissions, or conduct of other persons or entities not authorized to act on behalf of them and Defendant is not liable for the act, omissions of its agents, if any, who exceeded the scope of their authority. 15. Any claim for punitive or exemplary damages is subject to the limitations and constraints of Due Process found in the Fifth and Fourteenth Amendments to the United States Constitution. 2 20060161.20220287/4323934.1 16. Defendant pleads bankruptcy tolling, common law tolling, equitable tolling, abandonment of any alleged acceleration of the subject loan obligations, and all tolling of the statute of limitations available at law or in equity, including but not limited to tolling under §16.063 of the Texas Civil Practice and Remedies Code. WHEREFORE, PREMISES CONSIDERED, Defendant respectfully pray that Plaintiffs take nothing by reason of the claims alleged against it, that Defendant recovers its taxable court costs, and that Defendant recover such other and further relief to which this Court deems it to be justly entitled. Respectfully submitted, HIRSCH & WESTHEIMER, P.C. By: /s/ Michael F. Hord Jr. Michael F. Hord Jr. State Bar No. 00784294 Eric C. Mettenbrink State Bar No. 24043819 1415 Louisiana, 36th Floor Houston, Texas 77002-2772 713-220-9182 Telephone 713-223-9319 Facsimile Email: mhord@hirschwest.com Email: emettenbrink@hirschwest.com ATTORNEYS FOR DEFENDANT 3 20060161.20220287/4323934.1 CERTIFICATE OF SERVICE I hereby certify that on this 3rd day of May, 2022 a true and correct copy of the foregoing document was served as follows: James M. Andersen 17041 El Camino Real, Suite 204 Houston, TX 77058 Phone: (281) 488-2800 Fax: (281) 480-4851 Email: jandersen.law@gmail.com Via E-Service /s/ Michael F. Hord Jr. Michael F. Hord Jr. 4 20060161.20220287/4323934.1 Automated Certificate of eService This automated certificate of service was created by the efiling system. The filer served this document via email generated by the efiling system on the date and to the persons listed below. The rules governing certificates of service have not changed. Filers must still provide a certificate of service that complies with all applicable rules. Envelope ID: 64153972 Status as of 5/3/2022 4:43 PM CST Associated Case Party: TimothyL.Bourgeois Name BarNumber Email TimestampSubmitted Status James Michael Andersen 1165850 jandersen.law@gmail.com 5/3/2022 4:34:27 PM SENT Associated Case Party: Select Portfolio Servicing, Inc. Name BarNumber Email TimestampSubmitted Status Eric Mettenbrink emettenbrink@hirschwest.com 5/3/2022 4:34:27 PM SENT Michael F.Hord mhord@hirschwest.com 5/3/2022 4:34:27 PM SENT