Foreclosure Answer and Counterclaim

foreclosure counterclaim 175I filed the Counterclaim and Answer, below, to Wells Fargo’s Complaint for Foreclosure.

I have a brain injury so I was not able to completely answer in the time allowed and I requested more time. The Court allowed it and filed this “More Complete Answer”.

To prosecute my Counterclaim I did Discovery, including Requests for Production, Interrogatories and Requests for Admissions. The Rules for Discovery are based on the federal rules and are therefore about the same in most states. I’ve quoted part of the rule in my discovery documents. You can find the rule for your state online.

Affirmative Defenses

Affirmative defenses came to my attention when I filed an adversary proceeding in Bankruptcy Court for mandatory damages for violation of the automatic stay. The Deutsche Bank lawyer, against whom the proceeding was directed, used defenses that were untrue and hurtful, but in the end he won. (The judge, Robert Jacobvitz,  treated him like their kids were married. So it appears lawyers have an advantage, one way or another ~ just saying.)

rightthumb29ridgespro50Stress lines show Low B12

If I’d used affirmative defenses, particularly those related to standing and res judicata, in my Answer to Wells Fargo’s Complaint for Foreclosure, Wells Fargo could have been stopped at the very beginning. Assuming, of course, that there wasn’t an amount of prejudice similar to that I experienced from Judge Robert Jacobvitz in bankruptcy court and Judge Michael Vigil in the state court.

But, I didn’t know about affirmative defenses till later. Your best bet is to put them into your answer. If you haven’t done that, there is case law supporting the use of the res judicata defense in your Objection to Summary Judgment.

Using Res Judicata to Stop Foreclosure ~ Read more.

Using Standing and Original Note Requirement to Stop Foreclosure ~ Read more.

 

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Affirmative defenses include any defense in fact or law that prevents the plaintiff from winning the case. Common defenses include:

  • Lack of Standing ~ Standing in a foreclosure requires plaintiff to have original note
  • Res Judicata ~ Latin for a matter already judged, one the court has already ruled on
  • Statute of Limitations ~ suit brought beyond statutory limit date
  • Laches ~ suit brought beyond equitable limit, prejudicing defendant
  • Accord and Satisfaction ~ parties already settled the dispute
  • Assumption of Risk ~ plaintiff knowingly exposed himself to danger
  • Statute of Frauds ~ absence of writing to enforce contract
  • Estoppel ~ plaintiff’s own actions prevent him from seeking a remedy in court

The list is nearly endless because it includes any matter constituting an avoidance or defense.

Every defense likely to prevent the plaintiff from winning should be asserted in the answer as an affirmative defense.

Because there is significant prejudice among judges against self-represented parties, your nerves may be in for a beating, given the stress that’s associated with watching unfair advantage being given to banks and their lawyers. Learn about vitamin B12 and your nerves, so you can protect them. Learn how to recognize low vitamin B12 levels.


 

FIRST JUDICIAL DISTRICT COURT

COUNTY OF SANTA FE

STATE OF NEW MEXICO

No. D-101-CV-200800942

Wells Fargo Bank NA,
Plaintiff,
v.
Karen Marie Kline, Pueblos de Rodeo Road OwnersAssociation, Inc.; Manhattan Condominium Association,
Defendants.

MORE COMPLETE ANSWER TO COMPLAINT FOR FORECLOSURE

1. Deny. The law presupposes that Plaintiff will have acted in good faith and not caused the foreclosure by its own actions.

2. Admit – I bought my home in 1991 and then refinanced.

3. Admit.

4. Deny. The appropriate document should be attached and it is not. My mortgage was with GE Capital. See Loan modification attached to Complaint.

5. Admit.

6. I cannot admit or deny because the actual numbers have not been provided and need to be. This is a foreclosure for a specific amount of money, so the specific amounts need to be shown. Additionally, the paragraph shows that I paid for October 1, 2007 and at the same time shows me delinquent from October 1, 2007.

7. I am keenly aware that in the foreclosure of my condo, which was done effectively behind my back since it was foreclosed without a hearing after I answered, I was not allowed to redeem, so I can’t say whether this paragraph is actually true.

8. I know that in the last foreclosure of this my home I was charged thousands and disallowed access to my money in my bank account after I sold my rental. The fees charged for a few days of bankruptcy were exorbitant and not reasonable and this needs to be addressed before these charges are made a part of a foreclosure judgment. Plus if the foreclosure fees were exorbitant, then it puts into question all of the fees charged. The lawyer, Sharon Hankla, is the same in both actions.

9. I do not have sufficient knowledge to admit or deny.

10. Deny.

11. Deny.

12. Deny, to the best of my knowledge.

13. Deny that Manhattan Condo Association has any claim in my property. They released their liens so that Rick Green, allegedly the real estate agent of the Condo Association Director, could purchase my property at the auction about which I had no notice and then redeem when I was not allowed to redeem my property that I had paid on and taken care of for nearly two decades. Further the liens were never adjudicated despite many requests I filed. Most importantly, the Condo Association was served with the Amended Complaint in violation of the automatic stay in my Chapter 13 which by federal law 11 U.S.C 362 made the service of the Amended Complaint void and deprived the Court of jurisdiction over the defendants whose liens made them necessarily involved in.

14. Deny. There is NO unknown spouse. I immediately responded to Wells Fargo’s motion to dismiss this defendant and my response was ignored.

 

COUNTERCLAIM AND DEFENSES

1. Unreasonable fees charged by the lawyers in the last foreclosure.

2. $175,000 compensatory damages for interference with future contract and bad faith; see attached sales results for properties near mine and like mine, Exhibits 2-5, which show the value of my property last year when I was kept from refinancing and getting some of my equity by Wells Fargo and its lawyers refusing in the fall of 2005 to allow me ten days to complete the sale of my rental, which was in fact completed in the ten days I requested. If not for their bad faith behavior I would not have been kept from refinancing by my bankruptcy which was not yet two years old. By the time it was two years old the mortgage meltdown was beginning, which I will point out is the result of lenders taking advantage of people by selling them untenable loans for the great profit of the lenders which is now destroying the financial institutions that gleaned so much ill gotten gain. I worked hard for my property and I took care of it for decades. To cheat me out of my equity is unconscionable and should shock the conscience of the Court.

3. Interest.

4. Compensation for emotional distress. Social Security did not send me my money when they said, See Exhibit 1.

I lived frugally while I was working so that I would have equity to take care of myself in my old age. I saved money rather than going to movies or buying a bottle of wine. I put that money toward my mortgage so I would build up equity.I was happy to think that I had taken care of the problems with my condo and now I could sell it and I would have the money I needed to take care of myself, but that’s when my condo was foreclosed behind my back.

So last summer I wanted to get some equity out of my home and I found I could not because of the Chapter 11 I had to file because the lawyers wanted not only the money I owed to Wells Fargo, but also all my equity as a punishment that I was poor for awhile and could not pay my mortgage promptly.

The lawyers by their actions interfered with my future contracts and caused me to not be able to get to my equity of about $175,000. If not for the action of the lawyers who acted in bad faith forcing me to file chapter 11 when in fact I had a buyer who indeed closed when he said he would, that is in the ten days I requested, I would have had the money to consistently pay my mortgage on time.

Therefore I am claiming my equity which was taken from me in bad faith, in the amount of $175,000 plus interest, and compensation for emotional distress.I am also claiming the $6,000 charged to me by the lawyers, the same Sharon Hankla as in this case, which amount included thousands for the bankruptcy case, which I would not have had to file if they had not forced me by their bad faith. The $6,000 needs to be verified. I could not get cooperation from the lawyers or Wells Fargo at the time.

 

DISCUSSION – HISTORY

When my home, the property in this foreclosure that I am living in and was living in then, was in foreclosure in 2005, I was not allowed to come to any hearing in the case. At the time I had tetanus and was extremely sick. Social services wrote a letter verifying how sick I was when I asked for the hearing to be held on a later date, so that I would have more notice because I could hardly walk, but the hearing was held without me.

After my home was foreclosed I was able to go to the homeless doctor and he prescribed three or four weeks of Metronidazol to kill the clostridia bacteria that causes tetanus, and after that I was better though the nerve damage was extensive. I immediately went to my single family rental on Vereda de Pueblo and saw that someone had things there and appeared to be living there. It was extremely upsetting since I had already had to call the police once when my Realtor said there were things in the house. This time I didn’t call the police because I saw from the very small clothes and the very large Kotex that the person was a woman and it appeared that she might have low B12 if she needed such huge Kotex. I took a few of her things that I thought she would want, and I left her a note about why I thought she had low B12 because it looked as if she had abnormally heavy periods, and asked her to call me. She did. Her name was Valerie Sanchez, so I don’t know if she is related to the Honorable Judge Sanchez, or not. Her grandparents live or lived near me on Avenida de San Marcos and her parents live or lived in Eldorado. She never admitted how she got a key to get into my property, but she admitted to being bipolar and that she had extremely heavy periods. I decided to hire her and her boyfriend to paint my rental for me, and clean up the yard so that I could sell it, and I would pay them out of closing, which I did. But after that and after she was consistently afraid of her father I let her and her boyfriend live in my condo while they were supposed to be painting it, but they didn’t paint it and they did damage, so while it was a good idea to hire them for my single family, it was not a good idea to let them live in my condo while they were supposed to be doing work on it.

When my Vereda property was painted and the Realtor put in new carpet to be paid for out of closing, he listed it and it went under contract in less than 24 hours for more than I was asking. I had to ask a low price because of the distress of the situation to include my disability from falling when I was living in my condo before I had the privy pit excavated. The privy pit had contained human excrement and was located under my bedroom, a part of the patio, and most crucially, under the sewer pipe from my unit. When my tenants who gardened stood on the pipe which no longer had anything under it to hold it up once the excrement decomposed and subsided over the years, the pipe broke. But it was underground so the problem was not visible. Because my tenants called me to take care of sewage backed up in their bathtub, I am pretty sure that is when it happened. I am sure because in over a decade up until that time any back up had always been from the front unit going back, and as a precaution when I was head of the condo association I had instituted regular rotorooting to make sure the problem didn’t happen any more.I would guess that when the rootorooter came when my tenants had sewage backup it made a cavity in which additional sewage collected over the years. In any case, my tenants left shortly thereafter saying that they had begun to be sick a lot and they wanted to move. I didn’t think anything of what they said until much later.

I moved in when they left. I lived there for two or three years before there were worrying bangs coming from under the floor and I was told by some state agency that there could be a gas that was potentially dangerous. Somewhere in there a structural engineer who was looking into the holes forming in my patio, which I thought were from run off from the roof of the first unit, discovered the privy pit when he took soil samples.A state or federal agency said that I should have the air tested. I C.E.R.L. to do the testing. That’s how the hydrogen sulfide in my condo was found. The man who did the testing said I had to have the pit excavated, that I couldn’t live with it there. So I hired people to dig it out, and that’s how the broken sewer pipe that went over it was found.

By that time I was falling a lot and could hardly remember anything. I wheezed horribly at night: the h.s. is heavier than air so the lower my head was, as for instance when I was in bed, the more h.s. it was in. I could not walk straight anymore. I bumped into doorways had black and blue marks. I had gone to a podiatrist on the advice of my doctor who could not understand why my feet were losing feeling. The podiatrist said I had to exercise or my loss of function would be even worse. At the time I could barely wiggle my toes, and had to concentrate really hard to do it. I ordered a Gazelle which from the telly ad I could see would allow me to hold on while I used it. It was great, but using it in my condo with the h.s. that I didn’t know about was not good since the exercise made me take deeper breaths and that made me get more h.s. into my system.

The Condo Association said they would pay for their share of the excavation, but they never paid anything, so when I trusted them rather than borrowing money on my equity while my credit was still good, I made a bad mistake, because once I was late on my mortgage payments my credit no longer allowed me to borrow on my equity.

The Condo Association Director threatened me, and I tried to get court help, but my disability worked against me, though at that time I didn’t accept that my disability was as bad as it is. Even though that is when the Division of Vocational Rehabilitation provided me with an evaluation and some compensation technique training which the Speech Pathologist said I was too stressed to complete.

About a year later when I could not feel a darning needle that had broken off in my toe I got tetanus, and then my tenants broke their lease, left early and the boiler burned out when it was without water to top it up, so I couldn’t rent it, and I hadn’t been renting my condo because the structural engineer had said there could be a second pit. I didn’t want to rent it if it posed a danger to someone else, since the damage to my nerves and cognition had been life altering because my thinking is so limited now.

Respectfully submitted,

Karen Marie Kline, Defendant, pro se
Santa Fe, New Mexico 87507

CERTIFICATE OF SERVICE: I caused a true copy of MORE COMPLETE ANSWER TO COMPLAINT FOR FORECLOSURE, to be mailed today, September 15, 2008, to:

Sharon Hankla and Karen Howden Weaver
999 18th St., Suite 2201, Bin 1
Denver, CO 80202
(800) 286-0013; (303) 285-2222

 

I’m not going to copy the exhibits to this web page, just in the interest of saving time.

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