Preview
Filed: 10/28/2019 8:17 AM
JOHN D. KINARD - District Clerk
Galveston County, Texas
Envelope No. 37995108
By: Monique McNeal
10/28/2019 9:37 AM
CAUSE NO. 19-CV-1864
TOD W. LAY and SHANNON LAY, § IN THE DISTRICT COURT OF
§
Plaintiff, §
§
v. § 212th JUDICIAL DISTRICT
§
NATIONSTAR MORTGAGE LLC d/b/a §
MR COOPER SUCCESSOR BY §
MERGER TO PACIFIC UNION §
FINANCIAL LLC, §
§
Defendant. § GALVESTON COUNTY, TEXAS
DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES
AND REQUEST FOR DISCLOSURES
COMES NOW Defendant Nationstar Mortgage, LLC d/b/a Mr. Cooper (“Nationstar” or
“Defendant”), by and through the undersigned counsel, and hereby files this their Original Answer,
Affirmative Defenses and Requests for Disclosure in response to Plaintiffs’ Original Petition,
Application for Temporary Restraining Order and Temporary Injunction and Request for
Disclosures (“Petition”).
I. GENERAL DENIAL
1. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, Defendant generally denies, each
and every, all and singular, the allegations of Plaintiffs Tod W. Lay and Shannon Lay (“Plaintiffs”)
contained within their Petition and any amendment thereof and demand strict proof thereof.
II. AFFIRMATIVE DEFENSES
Defendant also asserts the following affirmative defenses:
2. Plaintiffs have failed to state a claim upon which relief can be granted.
3. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of
limitations.
DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 1 of 4
Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC
4. Plaintiffs’ claims are barred, in whole or in part, by Plaintiff’s failure to mitigate
any alleged (and denied) damages.
5. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of frauds.
6. Plaintiffs’ claims are barred, in whole or in part, by fraud.
7. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of res judicata
and/or collateral estoppel.
8. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have failed to
satisfy all conditions precedent to recovery.
9. Defendant’s acts or omissions were not the cause of injury, damage or loss to
Plaintiffs, if any.
10. Plaintiffs’ damages, if any, were caused in whole or in part by the conduct of
Plaintiffs and/or person(s) or entities over which Defendant has no control. Defendant is entitled
to a comparative apportionment of fault, if any, as to those other parties, and Defendant is likewise
entitled to a judgment against them for contribution or indemnity.
11. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of justification
and/or mistake.
12. Plaintiffs’ claims are barred, in whole or in part, by the applicable equitable
doctrines of waiver, estoppel, laches, set-off, in pari delicto, and/or unclean hands.
13. Plaintiffs’ claims are barred, in whole or in part, because any alleged wrongful act
or omission by Defendant was the result of a good faith and/or bona fide error.
14. Defendant specifically denies that Plaintiffs are entitled to an award of attorney’s
fees, pre- or post-judgment interest, or costs either contractually or by statute.
DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 2 of 4
Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC
15. Defendant specifically denies that Plaintiffs are entitled to an award of statutory
damages, treble damages, or exemplary damages either contractually or by statute, as applicable.
16. Some or all of Plaintiffs’ claims are barred by failure of consideration.
17. Plaintiffs’ claims are barred, in whole or in part, because Defendant’s conduct was
not the producing, nor the proximate, cause of Plaintiffs’ alleged losses, damages and/or injuries.
18. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are unable to
prove their alleged losses, damages, and/or injuries in accordance with Texas law.
19. Some or all of Plaintiffs’ claims are barred by their failure to perform their own
contractual obligations.
20. Defendant presently has insufficient knowledge or information on which to form a
belief as to whether they may have additional, as yet unstated, defenses available. Defendant
reserves the right to assert additional defenses in the event discovery indicates would be
appropriate.
III. NOTICE OF INTENT TO USE DOCUMENTS PRODUCED
AT ANY PRE-TRIAL PROCEEDING AND/OR TRIAL
21. Pursuant to Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant
hereby gives notice to all parties in this matter that Defendant intends to use any and all documents
produced by any and/or all parties in discovery, attached to depositions as exhibits, or produced
for inspection at deposition in this case at any pre-trial proceeding and/or at trial.
IV. REQUEST FOR DISCLOSURES
22. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 194, Defendant request that
Plaintiffs disclose, within thirty (30) days of service of this request, the information or material
described in Rule 194.2.
DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 3 of 4
Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC
PRAYER
WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs take nothing
by their claims; that Plaintiffs’ claims be dismissed with prejudice; and that Defendant be awarded
its costs and granted all other and further relief to which Defendant may show themselves justly
entitled.
Dated: October 28, 2019 Respectfully submitted,
/s/ Heather N. Sutton
HEATHER N. SUTTON, SBN: 24072378
hsutton@mcguirewoods.com
MCGUIREWOODS LLP
2000 McKinney Avenue, Suite 1400
Dallas, Texas 75201
Telephone: 214.932.6400
Facsimile: 214.932.6499
ATTORNEY FOR DEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on October 28, 2019, a copy of the foregoing was served via the
Court’s electronic filing system as follows:
Robert “Chip” C. Lane
notifications@lanelaw.com
Joshua D. Gordon
joshua.gordon@lanelaw.com
THE LANE LAW FIRM, P.L.L.C.
6200 Savoy Drive, Suite 1150
Houston, Texas 77036
ATTORNEYS FOR PLAINTIFFS
/s/ Heather N. Sutton
HEATHER N. SUTTON
DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 4 of 4
Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC
Preview
Filed: 10/28/2019 8:17 AM JOHN D. KINARD - District Clerk Galveston County, Texas Envelope No. 37995108 By: Monique McNeal 10/28/2019 9:37 AM CAUSE NO. 19-CV-1864 TOD W. LAY and SHANNON LAY, § IN THE DISTRICT COURT OF § Plaintiff, § § v. § 212th JUDICIAL DISTRICT § NATIONSTAR MORTGAGE LLC d/b/a § MR COOPER SUCCESSOR BY § MERGER TO PACIFIC UNION § FINANCIAL LLC, § § Defendant. § GALVESTON COUNTY, TEXAS DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUEST FOR DISCLOSURES COMES NOW Defendant Nationstar Mortgage, LLC d/b/a Mr. Cooper (“Nationstar” or “Defendant”), by and through the undersigned counsel, and hereby files this their Original Answer, Affirmative Defenses and Requests for Disclosure in response to Plaintiffs’ Original Petition, Application for Temporary Restraining Order and Temporary Injunction and Request for Disclosures (“Petition”). I. GENERAL DENIAL 1. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 92, Defendant generally denies, each and every, all and singular, the allegations of Plaintiffs Tod W. Lay and Shannon Lay (“Plaintiffs”) contained within their Petition and any amendment thereof and demand strict proof thereof. II. AFFIRMATIVE DEFENSES Defendant also asserts the following affirmative defenses: 2. Plaintiffs have failed to state a claim upon which relief can be granted. 3. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of limitations. DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 1 of 4 Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC 4. Plaintiffs’ claims are barred, in whole or in part, by Plaintiff’s failure to mitigate any alleged (and denied) damages. 5. Plaintiffs’ claims are barred, in whole or in part, by the applicable statute of frauds. 6. Plaintiffs’ claims are barred, in whole or in part, by fraud. 7. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of res judicata and/or collateral estoppel. 8. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs have failed to satisfy all conditions precedent to recovery. 9. Defendant’s acts or omissions were not the cause of injury, damage or loss to Plaintiffs, if any. 10. Plaintiffs’ damages, if any, were caused in whole or in part by the conduct of Plaintiffs and/or person(s) or entities over which Defendant has no control. Defendant is entitled to a comparative apportionment of fault, if any, as to those other parties, and Defendant is likewise entitled to a judgment against them for contribution or indemnity. 11. Plaintiffs’ claims are barred, in whole or in part, by the doctrines of justification and/or mistake. 12. Plaintiffs’ claims are barred, in whole or in part, by the applicable equitable doctrines of waiver, estoppel, laches, set-off, in pari delicto, and/or unclean hands. 13. Plaintiffs’ claims are barred, in whole or in part, because any alleged wrongful act or omission by Defendant was the result of a good faith and/or bona fide error. 14. Defendant specifically denies that Plaintiffs are entitled to an award of attorney’s fees, pre- or post-judgment interest, or costs either contractually or by statute. DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 2 of 4 Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC 15. Defendant specifically denies that Plaintiffs are entitled to an award of statutory damages, treble damages, or exemplary damages either contractually or by statute, as applicable. 16. Some or all of Plaintiffs’ claims are barred by failure of consideration. 17. Plaintiffs’ claims are barred, in whole or in part, because Defendant’s conduct was not the producing, nor the proximate, cause of Plaintiffs’ alleged losses, damages and/or injuries. 18. Plaintiffs’ claims are barred, in whole or in part, because Plaintiffs are unable to prove their alleged losses, damages, and/or injuries in accordance with Texas law. 19. Some or all of Plaintiffs’ claims are barred by their failure to perform their own contractual obligations. 20. Defendant presently has insufficient knowledge or information on which to form a belief as to whether they may have additional, as yet unstated, defenses available. Defendant reserves the right to assert additional defenses in the event discovery indicates would be appropriate. III. NOTICE OF INTENT TO USE DOCUMENTS PRODUCED AT ANY PRE-TRIAL PROCEEDING AND/OR TRIAL 21. Pursuant to Rule 193.7 of the TEXAS RULES OF CIVIL PROCEDURE, Defendant hereby gives notice to all parties in this matter that Defendant intends to use any and all documents produced by any and/or all parties in discovery, attached to depositions as exhibits, or produced for inspection at deposition in this case at any pre-trial proceeding and/or at trial. IV. REQUEST FOR DISCLOSURES 22. Pursuant to TEXAS RULE OF CIVIL PROCEDURE 194, Defendant request that Plaintiffs disclose, within thirty (30) days of service of this request, the information or material described in Rule 194.2. DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 3 of 4 Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC PRAYER WHEREFORE, PREMISES CONSIDERED, Defendant prays that Plaintiffs take nothing by their claims; that Plaintiffs’ claims be dismissed with prejudice; and that Defendant be awarded its costs and granted all other and further relief to which Defendant may show themselves justly entitled. Dated: October 28, 2019 Respectfully submitted, /s/ Heather N. Sutton HEATHER N. SUTTON, SBN: 24072378 hsutton@mcguirewoods.com MCGUIREWOODS LLP 2000 McKinney Avenue, Suite 1400 Dallas, Texas 75201 Telephone: 214.932.6400 Facsimile: 214.932.6499 ATTORNEY FOR DEFENDANT CERTIFICATE OF SERVICE I hereby certify that on October 28, 2019, a copy of the foregoing was served via the Court’s electronic filing system as follows: Robert “Chip” C. Lane notifications@lanelaw.com Joshua D. Gordon joshua.gordon@lanelaw.com THE LANE LAW FIRM, P.L.L.C. 6200 Savoy Drive, Suite 1150 Houston, Texas 77036 ATTORNEYS FOR PLAINTIFFS /s/ Heather N. Sutton HEATHER N. SUTTON DEFENDANT’S ORIGINAL ANSWER, AFFIRMATIVE DEFENSES AND REQUESTS FOR DISCLOSURE Page 4 of 4 Cause No. 19-CV-1864; Tod W. Lay, et al. v. Nationstar Mortgage, LLC