Free Answer to Complaint - District Court of California - California

Case 3:07-cv-02423-WMC

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Martin T. McGuinn (SBN 082530) Jana Logan (SBN 171152) KIRBY & McGUINN, A P.C. 600 B Street, Suite 1950 San Diego, California 92101-4515 Telephone: (619) 685-4000 Facsimile: (619) 685-4004 Attorneys for Defendant Shirley Swab, Trustee of the Estate of James Robert Swab

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ROGER MICHAEL GOMEZ, Plaintiff, v. ESTATE OF JAMES ROBERT SWAB and DOES 1-10, Defendants,

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Case No. 07 CV 2423 W-WMC ANSWER OF SHIRLEY SWAB, TRUSTEE OF THE ESTATE OF JAMES ROBERT SWAB AND THE DEFENDANT SUED AS THE "ESTATE OF JAMES ROBERT SWAB"

Defendant, Shirley Swab, Trustee of the Estate of James Robert Swab ("Defendant"), sued herein as the "Estate of James Robert Swab," answers the Complaint for Damages, et al., filed December 27, 2007 (the "Complaint") on behalf of Plaintiff Roger Michael Gomez as follows: 1. Defendant admits the allegations in that such jurisdiction exists as to the First and Second

21 Claims for Relief, which relate to Truth-in-Lending. Except as expressly and specifically admitted, 22 Defendant denies the allegations of paragraph 1. 23 2. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

24 allegations concerning the Court's supplemental jurisdiction over Defendant's state law claims and on 25 such basis denies the allegations of paragraph 2. 26 3. Paragraph 3 contains no allegations of fact and consists simply of introductory material.

27 For this reason, Defendant denies all allegations of paragraph 3. 28

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4.

Paragraph 4 contains no allegations of fact and consists simply of introductory material.

2 For this reason, Defendant denies all allegations of paragraph 4. 3 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

4 allegations concerning the legal interest of Plaintiff in the real property referred to in the Complaint, or 5 as to the legal effect of the ownership, and for that reason Defendant denies the allegations in paragraph 6 5. 7 6. Defendant admits and alleges that James Robert Swab passed away prior to the filing of

8 the Complaint. Defendant admits that the affairs of the Estate of James Robert Swab are being handled 9 by Shirley Ann Statham-Swab. Except as expressly and specifically admitted, Defendant denies the 10 allegations of paragraph 6. 11 12 7. 8. Defendant denies the allegations of paragraph 7. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

13 allegations of paragraph 8, and for that reason denies each and every allegation of paragraph 8. 14 9. Defendant lacks knowledge or information sufficient to form a belief as to the truth of

15 the allegations of paragraph 9, and for that reason denies each and every allegation of paragraph 9. 16 10. Paragraph 10 contains no allegations of fact and consists simply of introductory material.

17 For this reason, Defendant denies all allegations of paragraph 10. 18 11. Defendant admits that Roger Michael Gomez entered into a loan secured by a deed of

19 trust on property located at 1625 Griffin Street, Oceanside, California. Defendant denies the remaining 20 allegations of paragraph 11. 21 12. Defendant denies all allegations of paragraph 12 and alleges that the Note Secured by

22 Deed of Trust, Deed of Trust with Assignment of Rents and AMF Funding Group Escrow Instructions, 23 copies of which are attached to the Complaint, speak for themselves. 24 13. Defendants admits that James R. Swab is the beneficiary of record under a deed of trust

25 encumbering one parcel of the real property referred to in the Complaint as the Subject Property. Except 26 as expressly admitted and alleged, Defendant lacks knowledge or information sufficient to form a belief 27 as to the truth of the allegations of paragraph 13, and for that reason deny each and every allegation of 28 paragraph 13. Defendant alleges that the Note Secured by Deed of Trust, Deed of Trust with
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1 Assignment of Rents and AMF Funding Group Escrow Instructions, copies of which are attached to the 2 Complaint, speak for themselves. 3 14. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

4 allegations of paragraph 14, and for that reason deny each and every allegation of paragraph 14. 5 15. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

6 allegations of paragraph 15, and for that reason deny each and every allegation of paragraph 15. 7 16. Defendant denies all allegations of paragraph 16 and alleges that the Note Secured by

8 Deed of Trust, a copy of which is attached to the Complaint, speaks for itself. 9 17. Defendant denies all allegations of paragraph 17 and alleges that the Balloon Payment

10 Disclosure, a copy of which is attached to the Complaint, speaks for itself. 11 12 18. 19. Defendant denies the allegations of Paragraph 18. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

13 matters alleged in paragraph 19, and for that reason denies each and every allegation of paragraph 19. 14 20. Defendant admits that on November 30, 2007, a Trustee's Sale was conducted on the real

15 property referred to in the Complaint as the "Subject Property". Except as expressly admitted and 16 alleged, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the 17 matters alleged in paragraph 20, and for that reason deny each and every allegation of paragraph 20. 18 21. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

19 allegations of paragraph 21, and for that reason deny each and every allegation of paragraph 21. 20 22. Defendant incorporates by this reference her responses to paragraphs 1 through 21 set

21 forth above. 22 23. Paragraph 23 contains a legal conclusion an no allegations of fact and for this reason,

23 Defendant denies each and every allegation of paragraph 23. 24 24. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

25 allegations of paragraph 24 and on that basis denies all allegations of paragraph 24 and alleges that the 26 Notice of Right to Cancel, a copy of which is attached to the Complaint, speaks for itself. 27 25. Paragraph 25 contains a legal conclusion an no allegations of fact and for this reason,

28 Defendant denies each and every allegation of paragraph 25.
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26.

Paragraph 26 contains a legal conclusion an no allegations of fact and for this reason,

2 Defendant denies each and every allegation of paragraph 26. 3 27. Paragraph 27 contains a legal conclusion an no allegations of fact and for this reason,

4 Defendant denies each and every allegation of paragraph 27. 5 28. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

6 allegations of paragraph 28, and for that reason denies each and every allegation of paragraph 28 and 7 alleges that the Waiver of Right to Cancel, a copy of which is attached to the Complaint, speaks for itself. 8 29. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

9 allegations of paragraph 29, and for that reason denies each and every allegation of paragraph 29 and 10 alleges that the Waiver of Right to Cancel, a copy of which is attached to the Complaint, speaks for itself. 11 30. Paragraph 30 contains a legal conclusion an no allegations of fact and for this reason,

12 Defendant denies each and every allegation of paragraph 30. 13 31. Defendant alleges that the Notice of Right to Cancel, Note Secured by Deed of Trust and

14 Deed of Trust speak for themselves and for that reason denies each and every allegation of paragraph 31. 15 32. Paragraph 32 contains a legal conclusion an no allegations of fact and for this reason,

16 Defendant denies each and every allegation of paragraph 32. 17 18 19 33. 34. 35. Defendant denies each and every allegation of paragraph 33. Defendant denies each and every allegation of paragraph 34. To the extent that the allegations of paragraph 35 contain legal conclusions, Defendant

20 denies those allegations. 21 36. To the extent that the allegations of paragraph 36 contain legal conclusions, Defendant

22 denies those allegations. 23 37. Defendant admits that on November 30, 2007, a Trustee's Sale was conducted on the real

24 property referred to in the Complaint as the "Subject Property". Except as expressly admitted and 25 alleged, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the 26 matters alleged in paragraph 37, and for that reason deny each and every allegation of paragraph 37. 27 38. Defendant denies each and every allegation of paragraph 38, and answer the

28 subparagraphs of paragraph 38 as follows:
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a.

To the extent that the allegations of paragraph 38 contain legal conclusions

2 Defendant denies each and every allegation of subparagraph a. 3 b. To the extent that the allegations of paragraph 38 contain legal conclusions

4 Defendant denies each and every allegation of subparagraph b. 5 c. To the extent that the allegations of paragraph 38 contain legal conclusions

6 Defendant denies each and every allegation of subparagraph c. 7 d. To the extent that the allegations of paragraph 38 contain legal conclusions

8 Defendant denies each and every allegation of subparagraph d. 9 e. To the extent that the allegations of paragraph 38 contain legal conclusions

10 Defendant denies each and every allegation of subparagraph e. 11 f. To the extent that the allegations of paragraph 38 contain legal conclusions

12 Defendant denies each and every allegation of subparagraph f. 13 g. To the extent that the allegations of paragraph 38 contain legal conclusions

14 Defendant denies each and every allegation of subparagraph g. 15 39. Paragraph 39 contains no allegations of fact and for this reason Defendant denies all the

16 allegations of paragraph 39. 17 18 40. 41. Defendant incorporates by this reference paragraphs 1 through 39 of this Answer. To the extent that the allegations of paragraph 41 contain legal conclusions Defendant

19 denies each and every allegation of paragraph 41. 20 42. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the

21 allegations of paragraph 42 and on that basis denies all allegations of paragraph 42 and alleges that the 22 Truth-in-Lending Disclosure Statement, a copy of which is attached to the Complaint, speaks for itself. 23 43. Defendant denies all allegations of paragraph 43 and alleges that the Note Secured by

24 Deed of Trust, a copy of which is attached to the Complaint, speaks for itself. 25 44. Defendant denies all allegations of paragraph 44 and alleges that the Itemization of

26 Amount Financed, a copy of which is attached to the Complaint, speaks for itself. 27 45. Paragraph 45 contains a legal conclusion an no allegations of fact and for this reason,

28 Defendant denies each and every allegation of paragraph 45.
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46.

Defendant denies all allegations of paragraph 46 and alleges that the Truth-in-Lending

2 Disclosure Statement, a copy of which is attached to the Complaint, speaks for itself. 3 47. Paragraph 47 contains a legal conclusion an no allegations of fact and for this reason,

4 Defendant denies each and every allegation of paragraph 47. 5 48. Paragraph 48 contains a legal conclusion an no allegations of fact and for this reason,

6 Defendant denies each and every allegation of paragraph 48. 7 49. Paragraph 49 contains a legal conclusion an no allegations of fact and for this reason,

8 Defendant denies each and every allegation of paragraph 49. 9 50. To the extent that the allegations of paragraph 50 contain legal conclusions Defendant

10 denies each and every allegation of paragraph 50 and alleges that the Demand for Rescission, a copy of 11 which is attached to the Complaint, speaks for itself. 12 13 51. 52. Defendant denies each and every allegation of paragraph 51. Paragraph 52 contains a legal conclusion an no allegations of fact and for this reason,

14 Defendant denies each and every allegation of paragraph 52. 15 53. Paragraph 53 contains a legal conclusion an no allegations of fact and for this reason,

16 Defendant denies each and every allegation of paragraph 53. 17 54. Defendant admits that on November 30, 2007, a Trustee's Sale was conducted on the real

18 property referred to in the Complaint as the "Subject Property". Except as expressly admitted and 19 alleged, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the 20 matters alleged in paragraph 54, and for that reason deny each and every allegation of paragraph 54. 21 55. Defendant denies each and every allegation of paragraph 55, and answer the

22 subparagraphs of paragraph 55 as follows: 23 a. To the extent that the allegations of paragraph 55 contain legal conclusions

24 Defendant denies each and every allegation of subparagraph a. 25 b. To the extent that the allegations of paragraph 55 contain legal conclusions

26 Defendant denies each and every allegation of subparagraph b. 27 c. To the extent that the allegations of paragraph 55 contain legal conclusions

28 Defendant denies each and every allegation of subparagraph c.
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d.

To the extent that the allegations of paragraph 55 contain legal conclusions

2 Defendant denies each and every allegation of subparagraph d. 3 e. To the extent that the allegations of paragraph 55 contain legal conclusions

4 Defendant denies each and every allegation of subparagraph e. 5 f. To the extent that the allegations of paragraph 55 contain legal conclusions

6 Defendant denies each and every allegation of subparagraph f. 7 g. To the extent that the allegations of paragraph 55 contain legal conclusions

8 Defendant denies each and every allegation of subparagraph g. 9 h. To the extent that the allegations of paragraph 55 contain legal conclusions

10 Defendant denies each and every allegation of subparagraph h. 11 56. Paragraph 56 contains no allegations of fact and for this reason Defendant denies all the

12 allegations of paragraph 56. 13 57. Answering paragraph 57, Defendant incorporates by this reference paragraphs 1 through

14 39 of this Answer. 15 58. Defendant denies each and every allegation of paragraph 58 to the extent that it exceeds

16 the language of Business and Professions Code §§ 17200 et seq. 17 59. Defendant admits that Swab was a lender who was in the business of providing loans to

18 the public. Except as expressly and specifically admitted, Defendant denies the allegations of paragraph 19 59. 20 21 22 23 24 60. 61. 62. 63. 64. Defendant denies each and every allegation of paragraph 60. Defendant denies each and every allegation of paragraph 61. Defendant denies each and every allegation of paragraph 62. Defendant denies each and every allegation of paragraph 63. Defendant admits that a three-day notice to quit was served on the Plaintiff and further

25 alleges that the Plaintiff is no longer occupying the real property which is described in the Complaint as 26 the "Subject Property". Except as expressly admitted, Defendant denies each and every allegation of 27 paragraph 64. 28 / / /
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65.

Paragraph 65 contains no allegations of fact and for this reason Defendant denies all the

2 allegations of paragraph 65. 3 66. Answering paragraph 66, Defendant incorporates by this reference paragraphs 1 through

4 48 of this Answer. 5 6 7 67. 68. 69. Defendant denies each and every allegation of paragraph 67. Defendant denies each and every allegation of paragraph 68. Paragraph 66 contains no allegations of fact and for this reason Defendant denies all the

8 allegations of paragraph 69. 9 70. Answering paragraph 70, Defendant incorporates by this reference paragraphs 1 through

10 52 of this Answer. 11 71. Defendant admits that on November 30, 2007, a Trustee's Sale was conducted on the real

12 property referred to in the Complaint as the "Subject Property". Except as expressly admitted and 13 alleged, Defendant denies each and every allegation of paragraph 71. 14 72. To the extent that the allegations of paragraph 72 contain legal conclusions Defendant

15 denies each and every allegation of paragraph 72. 16 73. To the extent that the allegations of paragraph 73 contain legal conclusions Defendant

17 denies each and every allegation of paragraph 73. 18 74. Paragraph 74 contains no allegations of fact and for this reason Defendant denies all the

19 allegations of paragraph 74. 20 FIRST AFFIRMATIVE DEFENSE 21 75. Without admitting any of the allegations contained in the Complaint, Defendant alleges

22 that the Complaint , and each and every purported claim for relief contained therein, fails to allege facts 23 sufficient to state a claim against Defendant. 24 SECOND AFFIRMATIVE DEFENSE 25 76. Any alleged failure by Defendant under the Truth in Lending Act ("TiLA"), which

26 Defendant denies, was the result of an unintentional and bona fide error. Defendant reasonably relies on 27 a third party licensed California real estate broker whose job it is to prepare the disclosure statements. 28 / / /
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1 THIRD AFFIRMATIVE DEFENSE 2 77. Defendant is informed and believes and thereupon alleges: The failure to make the

3 required disclosures occurred, if at all, at the time the loan documents were signed, that the Plaintiff was 4 in full possession of all information relevant to the discovery of a TiLA violation, if any, and a § 1640(a) 5 damages claim on the day the loan papers were signed, therefore the limitation period has run on the 6 rescission claim. 7 FOURTH AFFIRMATIVE DEFENSE 8 78. Defendant is informed and believes and thereupon alleges: The right to rescind expires

9 when the Subject Property was sold. See, 12 C.F.R. § 226.23(a)(3). 10 FIFTH AFFIRMATIVE DEFENSE 11 79. Defendant is informed and believes and thereupon alleges: This action is barred by reason

12 of the Plaintiff's conduct, acts and omissions, which constitute an estoppel to assert the claims alleged 13 in the Complaint. 14 SIXTH AFFIRMATIVE DEFENSE 15 80. Without admitting any of the allegations contained in the Complaint, Defendant alleges

16 that the injuries and damages, if any, allegedly sustained by Plaintiff are speculative, indefinite and 17 uncertain in that the Complaint fails to allege with specificity what acts or omissions on the part of 18 Defendant proximately caused the damages, if any, in the amounts claimed, or give rise to Plaintiff's 19 claims for relief requested. 20 SEVENTH AFFIRMATIVE DEFENSE 21 81. Without admitting any of the allegations contained in the Complaint, Defendant alleges

22 that Plaintiff's damages, if any, were proximately caused solely by the intervening conduct, acts or 23 omissions of parties other than Defendant. 24 EIGHTH AFFIRMATIVE DEFENSE 25 82. Without admitting any of the allegations contained in the Complaint, Defendant is

26 informed and believes and thereupon alleges: The Plaintiff unreasonably delayed to assert the claims 27 alleged in the Complaint, such that the Plaintiff's claims are barred under the doctrine of laches. 28 / / /
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1 NINTH AFFIRMATIVE DEFENSE 2 83. Without admitting any of the allegations contained in the Complaint, Defendant alleges

3 that Plaintiff would be unjustly enriched if he recovered any of the sums alleged to be due in the 4 Complaint. 5 TENTH AFFIRMATIVE DEFENSE 6 84. Defendant's conduct is not the sole and proximate cause of the alleged damages, if any.

7 Any damages awarded to Plaintiff must be apportioned according to the respective fault and legal 8 responsibility of all parties, persons, and entities or their agents and employees who contributed to and/or 9 caused the alleged damages, if any, according to proof presented at the time of trial. 10 ELEVENTH AFFIRMATIVE DEFENSE 11 85. Defendant's actions, if any, with respect to the subject matters in each of the alleged

12 causes of action were undertaken in good faith and for good cause, with the absence of malicious intent 13 to injure Plaintiff, and constitute lawful, proper, fair, and justified means to further the sole purpose of 14 Defendant to engage in and continue lawful business activities. Furthermore, all decisions made my 15 Defendant were reasonably based on legitimate, business reasons, and were made for proper, business16 related reasons which were neither arbitrary, capricious, nor unlawful. By reason thereof, Plaintiff is 17 barred, in whole or in part, from recovery on any of the purported causes of action. 18 TWELFTH AFFIRMATIVE DEFENSE 19 86. Defendant is informed and believes, and thereon alleges, that she complied with all

20 requirements under state and federal law for making the loan to Plaintiff with all required disclosures and 21 notices of all rights under said statutes in a timely manner. 22 THIRTEENTH AFFIRMATIVE DEFENSE 23 87. Defendant is informed and believes, and thereon alleges, that Plaintiff failed to mitigate

24 the damages alleged in the Complaint. To the extent that such failure to mitigate, any recovery by 25 Plaintiff should be reduced. 26 FOURTEENTH AFFIRMATIVE DEFENSE 27 88. Defendant is informed and believes, and thereon alleges, that Plaintiff's claims are barred

28 by the doctrine of judicial estoppel.
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1 FIFTEENTH AFFIRMATIVE DEFENSE 2 89. Defendant is informed and believes, and thereon alleges, that Plaintiff failed to notify

3 Defendant of the alleged default or liability within a reasonable time or pursuant to a proper method. 4 SIXTEENTH AFFIRMATIVE DEFENSE 5 90. Defendant is informed and believes, and thereon alleges, that Plaintiff is guilty of

6 inequitable conduct, thereby barring Plaintiff from recovery of any damages. 7 SEVENTEENTH AFFIRMATIVE DEFENSE 8 91. Defendant is informed and believes, and thereon alleges, the Complaint is barred by the

9 doctrine of unclean hands. 10 EIGHTEENTH AFFIRMATIVE DEFENSE 11 92. Defendant is informed and believes, and upon such information and belief, alleges that

12 Plaintiff's complaint, and each cause of action therein, is barred by the doctrine of waiver. 13 NINETEENTH AFFIRMATIVE DEFENSE 14 93. Without admitting any of the allegations contained in the Complaint, Defendant alleges

15 that the Plaintiff failed to tender payment of the indebtedness owing as a condition precedent to voiding 16 or setting aside the non-judicial foreclosure sale. Karlsen v. American Savings and Loan Association 17 (1971) 15 Cal.App.3d 112, 92 Cal.Rptr. 851. 18 TWENTIETH AFFIRMATIVE DEFENSE 19 94. As a separate affirmative defense, and without admitting any of the allegations contained

20 in the Complaint, Defendant hereby reserves any other Affirmative Defenses with respect to the 21 Complaint which may become apparent upon discovery in this matter and which may be hereinafter 22 asserted with respect to this action. 23 TWENTY-FIRST AFFIRMATIVE DEFENSE 24 95. Defendant alleges that she presently has insufficient knowledge or information on which

25 to form a belief as to whether she may have additional, as yet unstated, claims for relief available. 26 Defendant reserves her right to assert claims for relief as counterclaims, cross-claim and/or third party 27 claims, in the event discovery or an investigation indicates that they would be appropriate. 28 ///
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WHEREFORE Defendant prays as follows: 96. 97. 98. 99. That the Plaintiff obtain no relief by way of the Complaint. For costs of suit. For reasonable attorney's fees. For such other and further relief as the Court deems just.

7 DATE: March 27, 2008 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

KIRBY & McGUINN, A P.C.

By: s/ Jana Logan Attorneys for Defendant Shirley Swab, Trustee of the Estate of James Robert Swab [email protected]

Gomez v. Estate of James Robert Swab Answer of Shirley Swab, Trustee of the Estate of James Robert Swab

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