Preview
FILED: NEW YORK COUNTY CLERK 03/01/2013 INDEX NO. 159300/2012
NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/01/2013
David A. Scheffel
Eric B. Epstein
DORSEY & WHITNEY LLP
51 West 52nd Street
New York, NY 10019
Attorneys for WMC Mortgage LLC
NEW YORK STATE SUPREME COURT
COUNTY OF NEW YORK
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CHRISTINA THOMPSON, an infant by her :
mother and natural guardian, MONIQUE :
PALMER, :
:
Plaintiff, :
:
vs. : Case No. 159300/12
:
COUNTRYWIDE GP, INC., COUNTRYWIDE :
HOME LOANS, INC., COUNTRYWIDE :
HOME LOANS SERVICING, L.P., MORGAN :
STANLEY ABS CAPITAL I, INC., WMC :
MORTGAGE CORP., :
:
Defendants. :
:
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WMC MORTGAGE LLC’S ANSWER AND AFFIRMATIVE DEFENSES TO
COMPLAINT
WMC Mortgage LLC (“WMC”), as successor in interest to WMC Mortgage Corp.,
hereby answers and asserts affirmative defenses to the Complaint in this action.
1. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 1 and therefore denies the same.
2. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 2 and therefore denies the same.
3. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 3 and therefore denies the same.
4. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 4 and therefore denies the same.
5. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 5 and therefore denies the same.
6. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 6 and therefore denies the same.
7. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 7 and therefore denies the same.
8. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 8 and therefore denies the same.
9. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 9 and therefore denies the same.
10. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 10 and therefore denies the same.
11. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 11 and therefore denies the same.
12. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 12 and therefore denies the same.
13. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 13 and therefore denies the same.
14. WMC admits the allegations in paragraph 14.
15. WMC admits the allegations in paragraph 15.
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16. WMC states that the allegations in paragraph 16 are incomprehensible and therefore denies
the same.
17. WMC states that the allegations in paragraph 17 are incomprehensible and therefore denies
the same.
18. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 18 and therefore denies the same.
19. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 19 and therefore denies the same.
20. Paragraph 20 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 20 and therefore denies the same.
21. In response to paragraph 21, WMC repeats its responses set forth above.
22. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 22 and therefore denies the same.
23. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 23 and therefore denies the same.
24. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 24 and therefore denies the same.
25. Paragraph 25 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 25 and therefore denies the same.
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26. Paragraph 26 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 26 and therefore denies the same.
27. Paragraph 27 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 27 and therefore denies the same.
28. Paragraph 28 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 28 and therefore denies the same.
29. Paragraph 29 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 29 and therefore denies the same.
30. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 30 and therefore denies the same.
31. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 31 and therefore denies the same.
32. Paragraph 32 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 32 and therefore denies the same.
33. Paragraph 33 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 33 and therefore denies the same.
34. In response to paragraph 34, WMC repeats its responses set forth above.
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35. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 35 and therefore denies the same.
36. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 36 and therefore denies the same.
37. WMC is without information or knowledge sufficient to form a belief as to the truth of the
allegations in paragraph 37 and therefore denies the same.
38. Paragraph 38 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 38 and therefore denies the same.
39. Paragraph 39 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 39 and therefore denies the same.
40. Paragraph 40 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 40 and therefore denies the same.
41. Paragraph 41 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 41 and therefore denies the same.
42. Paragraph 42 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 42 and therefore denies the same.
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43. Paragraph 43 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 43 and therefore denies the same.
44. Paragraph 44 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 44 and therefore denies the same.
45. Paragraph 45 contains conclusions of law to which no response is required. To the extent a
response is required, WMC is without information or knowledge sufficient to form a belief as
to the truth of the allegations in paragraph 45 and therefore denies the same.
AFFIRMATIVE DEFENSES
1. The Complaint is barred, in whole or in part, to the extent that interested, required, necessary,
and/or indispensable parties have not been joined in this action.
2. Plaintiff’s claims are barred by the applicable statutes of limitations.
3. WMC had no relevant legal duty to Plaintiff.
4. At no relevant time did WMC have notice of a lead paint condition on the premises.
5. If Plaintiff sustained any damages, which WMC denies, the same were caused in whole or in
part by the culpable conduct of one or more persons or entities for whose conduct WMC is
not responsible and with whom WMC has no legal connection.
6. If Plaintiff sustained damages, which WMC denies, the same were not due or caused by the
fault, lack of care, negligence, recklessness, carelessness, or breach of any duty on the part of
WMC.
7. Plaintiff’s claims are barred, in whole or in part, to the extent they arose because of the
intentional or unlawful acts of persons or entities other than WMC.
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8. Plaintiff’s claims are barred, in whole or in part, to the extent Plaintiffs failed to mitigate,
minimize, or avoid any damages Plaintiff allegedly sustained.
9. If Plaintiff sustained injuries, which WMC denies, the same were sustained in whole or in
part, or were contributed to, due to the culpable conduct and want of care on the part of
Plaintiff, and the amount of damages recoverable, if any, should be diminished by the
proportion that the culpable conduct attributable to Plaintiff bears to the culpable conduct
that caused the damage complained of, if any.
10. Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver, estoppel, laches,
and release.
11. If Plaintiff sustained damages, which WMC denies, the same were caused by the active,
direct and proximate negligence of others and accordingly, in the event that WMC is found to
be liable to Plaintiff, WMC will be entitled to indemnification, contribution, and/or
apportionment.
12. Plaintiff’s claims are barred, in whole or in part, by the doctrine of ratification.
13. Plaintiff’s claims are barred as WMC is a bona-fide lender without notice and for full value.
14. Plaintiff’s claims fail to state a cause of action upon which relief may be granted.
15. Plaintiffs’ action is barred under the principles of res judicata due to any and all prior
proceeding(s) in which Plaintiff asserted or could have asserted the instant claims as to
WMC.
16. WMC reserves the right to assert, at a later date, any affirmative defenses not asserted herein,
which further investigation may prove viable against Plaintiff.
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Dated: March 1, 2013 Respectfully submitted,
______________
/s/ Eric B. Epstein
David A. Scheffel
Eric B. Epstein
DORSEY & WHITNEY LLP
51 West 52nd Street
New York, NY 10019
Attorneys for WMC Mortgage LLC
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Preview
FILED: NEW YORK COUNTY CLERK 03/01/2013 INDEX NO. 159300/2012 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 03/01/2013 David A. Scheffel Eric B. Epstein DORSEY & WHITNEY LLP 51 West 52nd Street New York, NY 10019 Attorneys for WMC Mortgage LLC NEW YORK STATE SUPREME COURT COUNTY OF NEW YORK ------------------------------------------------------------- x CHRISTINA THOMPSON, an infant by her : mother and natural guardian, MONIQUE : PALMER, : : Plaintiff, : : vs. : Case No. 159300/12 : COUNTRYWIDE GP, INC., COUNTRYWIDE : HOME LOANS, INC., COUNTRYWIDE : HOME LOANS SERVICING, L.P., MORGAN : STANLEY ABS CAPITAL I, INC., WMC : MORTGAGE CORP., : : Defendants. : : -------------------------------------------------------------- x WMC MORTGAGE LLC’S ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT WMC Mortgage LLC (“WMC”), as successor in interest to WMC Mortgage Corp., hereby answers and asserts affirmative defenses to the Complaint in this action. 1. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 1 and therefore denies the same. 2. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 2 and therefore denies the same. 3. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 3 and therefore denies the same. 4. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 4 and therefore denies the same. 5. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 5 and therefore denies the same. 6. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 6 and therefore denies the same. 7. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 7 and therefore denies the same. 8. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 8 and therefore denies the same. 9. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 9 and therefore denies the same. 10. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 10 and therefore denies the same. 11. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 11 and therefore denies the same. 12. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 12 and therefore denies the same. 13. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 13 and therefore denies the same. 14. WMC admits the allegations in paragraph 14. 15. WMC admits the allegations in paragraph 15. 2 16. WMC states that the allegations in paragraph 16 are incomprehensible and therefore denies the same. 17. WMC states that the allegations in paragraph 17 are incomprehensible and therefore denies the same. 18. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 18 and therefore denies the same. 19. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 19 and therefore denies the same. 20. Paragraph 20 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 20 and therefore denies the same. 21. In response to paragraph 21, WMC repeats its responses set forth above. 22. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 22 and therefore denies the same. 23. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 23 and therefore denies the same. 24. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 24 and therefore denies the same. 25. Paragraph 25 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 25 and therefore denies the same. 3 26. Paragraph 26 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 26 and therefore denies the same. 27. Paragraph 27 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 27 and therefore denies the same. 28. Paragraph 28 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 28 and therefore denies the same. 29. Paragraph 29 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 29 and therefore denies the same. 30. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 30 and therefore denies the same. 31. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 31 and therefore denies the same. 32. Paragraph 32 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 32 and therefore denies the same. 33. Paragraph 33 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 33 and therefore denies the same. 34. In response to paragraph 34, WMC repeats its responses set forth above. 4 35. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 35 and therefore denies the same. 36. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 36 and therefore denies the same. 37. WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 37 and therefore denies the same. 38. Paragraph 38 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 38 and therefore denies the same. 39. Paragraph 39 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 39 and therefore denies the same. 40. Paragraph 40 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 40 and therefore denies the same. 41. Paragraph 41 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 41 and therefore denies the same. 42. Paragraph 42 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 42 and therefore denies the same. 5 43. Paragraph 43 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 43 and therefore denies the same. 44. Paragraph 44 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 44 and therefore denies the same. 45. Paragraph 45 contains conclusions of law to which no response is required. To the extent a response is required, WMC is without information or knowledge sufficient to form a belief as to the truth of the allegations in paragraph 45 and therefore denies the same. AFFIRMATIVE DEFENSES 1. The Complaint is barred, in whole or in part, to the extent that interested, required, necessary, and/or indispensable parties have not been joined in this action. 2. Plaintiff’s claims are barred by the applicable statutes of limitations. 3. WMC had no relevant legal duty to Plaintiff. 4. At no relevant time did WMC have notice of a lead paint condition on the premises. 5. If Plaintiff sustained any damages, which WMC denies, the same were caused in whole or in part by the culpable conduct of one or more persons or entities for whose conduct WMC is not responsible and with whom WMC has no legal connection. 6. If Plaintiff sustained damages, which WMC denies, the same were not due or caused by the fault, lack of care, negligence, recklessness, carelessness, or breach of any duty on the part of WMC. 7. Plaintiff’s claims are barred, in whole or in part, to the extent they arose because of the intentional or unlawful acts of persons or entities other than WMC. 6 8. Plaintiff’s claims are barred, in whole or in part, to the extent Plaintiffs failed to mitigate, minimize, or avoid any damages Plaintiff allegedly sustained. 9. If Plaintiff sustained injuries, which WMC denies, the same were sustained in whole or in part, or were contributed to, due to the culpable conduct and want of care on the part of Plaintiff, and the amount of damages recoverable, if any, should be diminished by the proportion that the culpable conduct attributable to Plaintiff bears to the culpable conduct that caused the damage complained of, if any. 10. Plaintiff’s claims are barred, in whole or in part, by the doctrine of waiver, estoppel, laches, and release. 11. If Plaintiff sustained damages, which WMC denies, the same were caused by the active, direct and proximate negligence of others and accordingly, in the event that WMC is found to be liable to Plaintiff, WMC will be entitled to indemnification, contribution, and/or apportionment. 12. Plaintiff’s claims are barred, in whole or in part, by the doctrine of ratification. 13. Plaintiff’s claims are barred as WMC is a bona-fide lender without notice and for full value. 14. Plaintiff’s claims fail to state a cause of action upon which relief may be granted. 15. Plaintiffs’ action is barred under the principles of res judicata due to any and all prior proceeding(s) in which Plaintiff asserted or could have asserted the instant claims as to WMC. 16. WMC reserves the right to assert, at a later date, any affirmative defenses not asserted herein, which further investigation may prove viable against Plaintiff. 7 Dated: March 1, 2013 Respectfully submitted, ______________ /s/ Eric B. Epstein David A. Scheffel Eric B. Epstein DORSEY & WHITNEY LLP 51 West 52nd Street New York, NY 10019 Attorneys for WMC Mortgage LLC 8