Ans to Complaint

7/31/2019 Ans to Complaint

1/21

STATE OF INDIANA ) IN THE ALLEN SUPERIOR COURT

)SS:

COUNTY OF ALLEN ) CAUSE NO. 02D01-12 05-MF 708

WELLS FARGO BANK, NA )

)Plaintiff, )

)

vs. ))

ROBERT A. HOPKINS, BRENDONWOOD PARK )

APARTMENTS, WILLIAM O. SCHELM DDS, )

CENTENNIAL WIRELESS, CANDLELITE )APARTMENTS LLC., CHEKS USA #1 and )

CHAPMANS BRIDGE COMMUNITY )

ASSOCIATION, )

)Defendants, )

ANSWER TO FORECLOSURE COMPLAINT

The Defendant, ROBERT A. HOPKINS (hereinafter Defendant) hereby files his Answer and

Affirmative Defenses to Plaintiffs, WELLS FARGO BANK, NA (hereinafter Plaintiff)

Complaint on Note and to Foreclose Mortgage on Real Estate and further states:

1. Defendant declares that paragraph 1 is a legal declaration and need not be denied.

2. Defendant admits the allegations in paragraphs 2 and 3.3. Defendant admits and denies in part the statement(s) made in paragraph 4 to the extent that

Defendant does not believe that Plaintiffs Exhibit is the same promissory note that was

signed by him and until such time as Plaintiff is able to produce the Original promissory

note for examination, it is impossible for him to make such a determination.

4. Defendant admits the allegations in paragraph 5.

5. Defendant is without knowledge of the allegations in paragraph 6 of the Complaint and

therefore denies the allegations and further questions the validity of the assignment to

Plaintiff by Mortgage Electronic Registration Systems, Inc. (hereinafter MERS).

6. Defendant denies the allegations in paragraphs 7, 8 and 10 of the Complaint and demands

strict proof thereof.

1


2/21

7. Paragraph 9 contains legal assertions to which no response is required. To the extent a

response is required, Defendant lacks sufficient knowledge to admit or deny and therefore

denies and demands full proof thereof.

8. In response to the assertion contained in paragraphs 11 and 12 of the Complaint, Defendant

admits that Plaintiff may be entitled to reasonable fees incurred for actions taken by

Plaintiff to protect its property interest to the extent allowed under the law.

9. Defendant lacks sufficient knowledge to admit or deny the factual assertions contained in

paragraph 13 of the Complaint and therefore denies those assertions and demands full

proof thereof.

10. Defendant is without sufficient knowledge of the allegations in paragraphs 14 and 15 of the

Complaint and therefore denies the allegations.

GENERAL DENIAL

11. To the extent not expressly admitted herein, Defendant generally denies the allegations

contained within the Plaintiffs Complaint and demands strict proof thereof, as required by

the Constitution, Statutes, Laws and Rules of Civil Procedure. Defendant reserves the right

to amend his answer, assert any additional counterclaims or causes of actions, he may have

against Plaintiff and to aver any affirmative defenses available to him within time allowed

and/or at the discretion of the court.

INTRODUCTION/FACTS

Defendant contends that Plaintiff has committed numerous acts of fraud, including without

limitations, Plaintiffs purposeful fraud in attempting to appear as the proper note holder in due

course on the subject property located at 8011 Mackinac Cv, Fort Wayne, IN 46835-9106

(Property)to this honorable court, when in fact Plaintiff is NOT the Real Party in interest in

this instant matter. Through this action and at trial, Defendant will establish that Plaintiff is not his

true creditor and as such has no legal, equitable, or pecuniary right in the debt obligation secured

by the Property.

The subject mortgage loan is a federally related mortgage loan subject to federal laws, rules

and regulations relating to the providing of notices, enforcement, servicing, and pre-suit default

prevention procedures including the requirement for a face-to-face meeting with the defendant,

including federally mandated loan modifications options.

2


3/21

DEFENDANTS FIRST AFFIRMATIVE DEFENSE

Fraud

1. The Plaintiff in this matter is Wells Fargo Bank, NA. The lender on the note is

American Mortgage & Financial Solutions, Inc.. Plaintiff claims that it owns and holds the noteand mortgage by way of assignment recorded on February 20, 2012. (Complaint Ex. E) No

where in the mortgage is MERS given a beneficial interest in the promissory note, nor has it ever

held a beneficial interest in the mortgage. MERS never has had possession of the promissory note

and therefore is barred from making such an assignment.

Plaintiff claims that it obtained its interest in the note and mortgage from an assignment of

the mortgage and note from MERS. (Complaint Ex. E) MERS cannot assign that which it does

not have an interest in, and it did not have an interest in the note or even the mortgage in this

instant matter.

DEFENDANTS SECOND AFFIRMATIVE DEFENSE

Plaintiffs Lack of Standing

2. Plaintiff does not own and hold the note. If the mortgage has not been properly

assigned to Plaintiff, then the Plaintiff lacks standing to bring suit because it has suffered no

legally cognizable injury upon which relief can be granted. Wherefore, plaintiff is not a real party

in interest and does not have a valid security interest in the Property.

DEFENDANTS THIRD AFFIRMATIVE DEFENSE

No Payment Supporting Equitable Lien/Subrogation

3. Plaintiff claims an ownership interest in the note by way of an illegal assignment.

However, the Plaintiff can not show that it paid any money or value for the assignment, for the

note or for the mortgage. Wherefore, Plaintiff is not entitled to an equitable lien if one is requested.

DEFENDANTS FOURTH AFFIRMATIVE DEFENSE

Unauthentic Endorsements

4. Defendant denies the authenticity of each and every endorsement on the Note and

Mortgage attached to Plaintiffs Complaint (Complaint Ex. B and Ex. D), including his own

alleged endorsements, and demands strict proof thereof, by clear and convincing evidence.

DEFENDANTS FIFTH AFFIRMATIVE DEFENSE

3


4/21

Lack of Default

5. Plaintiff has not and cannot show default as required pursuant to the Note.

DEFENDANTS SIXTH AFFIRMATIVE DEFENSERes Judicata/Estoppel

6. The Defendant asserts the defense of Estoppel. The subject promissory note is non-

negotiable paper. The Plaintiff is not a holder in due course and on information and belief, the

original promissory note is lost or stolen as it is not believed that the copy attached to Plaintiffs

complaint is the same one in which the Defendant signed. Accordingly, An obligor is not

obliged to pay the instrument if the person seeking enforcement of the instrument does not have

rights of a holder in due course and it can be proven that the instrument is a lost or stolen

instrument.

DEFENDANTS SEVENTH AFFIRMATIVE DEFENSE/CLAIM

Quasi-Estoppel

7. The Defendant assert a claim under the Defense to Acceleration and Foreclosure clause

in Paragraph 9 of the Mortgage of quasi-estoppel. Also known as Estoppel by Conduct, this

cause of action prohibits Plaintiff from asserting a right, to the disadvantage of the Defendant that

is inconsistent with a position previously taken by Plaintiff. Defendant in January of 2012 and

again in April of 2012, requested help from the Plaintiff and as instructed by Plaintiff, applied for a

modification under The Home Affordable Modification Program (HAMP), which is part of the

Making Homes Affordable (MHA) initiative. To-date, Plaintiff has failed to render a decision

regarding same. The Plaintiff, Wells Fargo Bank, NA choose to Participate in the MHA initiative

when it began to accept monetary incentives from the Federal government in exchange for the

commitment to make efforts to modify defaulting borrowers single family residential mortgages.

This position taken by Plaintiff recognizes the curing of default through a modification, by short

sale, or by allowing a Borrower to sign a deed-in-lieu of foreclosure as a more productive and less

expensive way rather than foreclosure. As such, the first two elements of a quasi-estoppel;

acquiescence and a benefit are satisfied.

8. Plaintiff has ignored theHandbook, when it failed to consider the Defendants requests

for the available relief options. This position is completely inconsistent with its prior offer to

4


5/21

consider Defendant under the various loss mitigation options in order to cure the default of the

loan. Plaintiffs actions were in direct contravention of the foreclosure preventative alternatives

espoused in its advertisements to consumers. This inconsistent position satisfies the third element

of a quasi-estoppel.

9. It would be unconscionable to permit Plaintiff to maintain this position and move

forward with judgment against Defendant and then a foreclosure sale and would cause irreparable

harm to Defendant. The Defendant took Plaintiff at its word, believing that it would consider him

for modification and other alternative loss mitigation options afforded to them. The Defendant

relied upon Plaintiffs representations to help save his home from foreclosure. Allowing Plaintiff

to ignore its obligations to the Defendant would be unconscionable.

DEFENDANTS EIGHTH AFFIRMATIVE DEFENSE/CLAIM

Failure to Comply with Federal Loan Servicing Requirements

10. The subject mortgage loan is a federally related mortgage loan subject to federal

regulations and laws. Plaintiff intentionally failed to act in good faith or to deal fairly with

Defendant by failing to follow the applicable standards of residential single family mortgage

lending and servicing as described herein thereby denying Defendant access to the residential

mortgage servicing protocols applicable to the subject note and mortgage pursuant to The National

Housing Act. Plaintiff failed to comply with the requirements of the National Housing Act, 12

U.S.C. 1701X(c)(5), under which Plaintiff is required to complete pre-foreclosure counseling for

the Defendant. As a qualified homeowner, Defendant should have been notified of his eligibility

for this counseling within the prescribed time limits, but instead were denied this information even

after taking the initiative by contacting the Plaintiff repeatedly. The Secretary of HUD determined

that if a creditors complianceis challenged in court, the ultimate determination of the adequacy

of the creditors notification and the legal consequences of any noncompliance will be made by the

court. 55 FR 2416 (01/24/1990). Additionally, the Secretary of HUD has determined that

noncompliance with the statute can be an actionable event that could affect a mortgagee ability

to carry out foreclosure in a timely manner. 54 Fed. Reg. 20964-65 (May 15, 1989). The

provision of this counseling is an affirmative obligation for the Plaintiff, the failure of which

prevents a valid foreclosure action.

5


6/21

DEFENDANTS NINTH AFFIRMATIVE DEFENSE/CLAIM

FAILURE TO CONDITION PRECEDENT

11. Plaintiff seeks to enforce an agreement through foreclosure when Plaintiff itself has

failed to perform under the terms and conditions of the agreement. Plaintiffs failure to perform

under the agreement bars it from claiming a default.

DEFENDANTS TENTH AFFIRMATIVE DEFENSE

HUD Violations

12. The mortgage which is the subject of this action is insured by the federal Single-

Family Loan Insurance Program. Therefore, Plaintiff must service the mortgage according to the

applicable federal regulations. Plaintiff failed to comply with these regulations as detailed below,

precluding the initiation of foreclosure proceedings.

(a) Failed to send a delinquency notice as required by 24 C.F.R. 203.602.

(b) Failed to contact or make reasonable attempts to contact Defendants as required by 24

C.F.R. 203.604.

(c) Failed to have a face-to-face interview or make a reasonable effort to arrange such a

meeting prior to a mortgagor being in default for three installment payments on the mortgage and

prior to filing a complaint for foreclosure. 24 C.F.R. 203. 604 (b).

(d) Failed to properly mitigate. Before four full monthly installments due on the mortgage

have become unpaid, the mortgagee shall evaluate on a monthly basis all of the loss mitigation

techniques provided at 203.501 to determine which is appropriate. Based upon such evaluations,

the mortgagee shall take the appropriate loss mitigation action. Documentation must be maintained

for the initial and all subsequent evaluations and resulting loss mitigation actions. In this instant

matter, Plaintiff failed to properly evaluate on a monthly basis all loss mitigation options and

therefore is in violation of 203. 605 and 606, wherein it is noted that Foreclosure may not beinitiated until all Loss Mitigation options have been considered.

(e) Failed to provide a default notice as required by 24 C.F.R. 650.

(f) The Department of Housing and Urban Development has determined that the

requirements of 24 C.F.R. Part 203(c) are to be followed before any mortgagee foreclosure.

6


7/21

(g) Plaintiff has no valid cause of action for foreclosure unless and until Plaintiff can

demonstrate compliance with regulations 24 C.F.R. 203.

(h) This Defendant made significant efforts to access foreclosure prevention services from

Plaintiff and to make payments, however Plaintiff denied this Defendant the required opportunity

to access and obtain mortgage servicing options designed to avoid foreclosure of the Property.

The failure of a mortgagee of a HUD insured mortgage to comply with the requirements set

forth in 24 C.F.R. Part 203 for the servicing of HUD insured mortgages constitutes an affirmative

defense to a foreclosure action. Florence R. Lacy-McKinney v. Taylor Bean and Whitaker

Mortgage Corp.,No. 71A03-0912-CV-587 Indiana Appeals Court 2010 andBankers Life

Company vs. Denton, 120 Ill.App.3d 67 458 N.E.2nd 203, 76 IL Dec. 64 (3rd Dist. 1983).

The Plaintiff thus comes to Court with unclean hands as a result of its failures andomissions as set forth above and incorporated herein. Plaintiff therefore should be prohibited by

reason thereof from obtaining the equitable relief of foreclosure from this Court. The Plaintiffs

unclean hands result form the Plaintiffs intentional and reckless failure to properly service this

mortgage pursuant to the federal regulations, and specifically, by filing this foreclosure action

before fully evaluating Defendant for all of the loss mitigation options available to him, including

modification under HAMP. As a matter of equity, this Court should refuse to allow this

foreclosure process to continue because acceleration of the note would be inequitable, unjust, and

the circumstances of this case render acceleration unconscionable.

DEFENDANTS ELEVENTH AFFIRMATIVE DEFENSE

Illegal Charges Added to Balance

13. Plaintiff has charged and/or collected payments from Defendant for attorney fees, legal

fees, foreclosure costs, late charges, property inspection fees, title search expenses, filing fees,

broker price opinions, appraisal fees, and other charges and advances, and predatory lending fees

and charges that are not authorized by or in conformity with the terms of the subject note and

mortgage. Plaintiff wrongfully added and continues to unilaterally add these illegal and excessive

charges to the balance that Plaintiff claims is due and owing under the subject note and mortgage.

DEFENDANTS TWELFTH AFFIRMATIVE DEFENSE

Unclean Hands

7
http://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2010/november/11191010jsk.pdfhttp://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2010/november/11191010jsk.pdfhttp://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2010/november/11191010jsk.pdfhttp://media.ibj.com/Lawyer/websites/opinions/index.php?pdf=2010/november/11191010jsk.pdf


8/21

14. The Plaintiff comes to court with unclean hands and is prohibited by reason thereof from

obtaining the equitable relief of foreclosure from this Court. The Plaintiffs unclean hands result

from the Plaintiff improvident and predatory intentional failure to comply with material terms of

the mortgage and note as well as federal regulations. The failure to comply with the default loan

servicing requirements that apply to this loan, all as described herein above. As a matter of equity,

this Court should refuse to foreclose this mortgage because acceleration of the note would be

inequitable, unjust, and the circumstances of this case render acceleration unconscionable.

15. Furthermore, this Court should refuse the acceleration and deny foreclosure because

Plaintiff was waived the right to acceleration or is estopped from doing so because of misleading

conduct and unfulfilled contractual and equitable conditions precedent. The Plaintiff is pursuing

this foreclosure under a guise of authority it does not have. In equity, the clean-hands doctrinebars relief to those guilty of improper conduct in the matter in which they seek relief. Wilson,

supra;Marshall v. Marshall, 227 Ark. 582, 300 S.W.2d 933 (1957). The doctrine of unclean

hands is an equitable tenet[,] which demands one who seeks equitable relief to be free from

wrongdoing in the matter Stewart v. Jackson, 635 N.E.2d 186, 189 before the Court.

(Ind.Ct.App.1994). A foreclosure action is an equitable proceeding which may be denied if the

holder of the note comes to the court with unclean hands or the foreclosure would be

unconscionable.Knight Energy Services, Inc. v. Amoco Oil Co., 660 So.2d 786, 789 (Fla. 4th

DCA 1995). The purpose of the clean-hands doctrine is to protect the interest of the public on

grounds of public policy and to protect the integrity of the court. Grable v. Grable, 307 Ark. 410,

821 S.W.2d 16 (1991).

DEFENDANTS THIRTEENTH AFFIRMATIVE DEFENSE

Violation of the Fair Debt Collection Practices Act (FDCPA) 15 U.S.C. 1692 Et. seq.

16. Defendant is a consumer within the meaning of the FDCPA, 15 U.S.C. 1692a (3).

Plaintiff and its agents and attorneys are debt collectors within the meaning of the FDCPA, 15

U.S.C. 1692a(6). The Plaintiff, its agents and attorneys violated 15 U.S.C. 1692d by engaging

in certain conduct, the natural consequence of which, is to harass, oppress, or abuse any person,

and which did harass, oppress and abuse the Defendant by falsely representing the character,

amount, or legal status of the debt (15 U.S.C. 1692e(2)); by sale or transfer of an interest in the

8


9/21

debt that caused the consumer to lose any claim or defense to payment of the debt, and in

particular, by obfuscation of the true creditor (15 U.S.C. 1692e(6)); by the collection of any

amount (including any interest, fee, charge, or expense incidental to the principal obligation)

unless such amount is expressly authorized by the agreement creating the debt or permitted by law

(15 U.S.C. 1692f(1)); by taking or threatening to unlawfully repossess or disable the Defendants

property (15 U.S.C. 1692f(6)); by failing to comply with noticing requirements in so much that

Plaintiff sent notice containing a statement that unless the Defendants, within thirty days after

receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be

assumed to be valid by the debt collector.. a statement that if the Defendants notifies the debt

collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed,

the debt collector will obtain verification of the debt or a copy of a judgment against the

Defendants and a copy of such verification or judgment will be mailed to the Defendants by the

debt collector; and a statement that, upon the Defendants' written request within the thirty-day

period, the debt collector will provide the Defendants with the name and address of the original

creditor, if different from the current creditor (15 U.S.C. 1692g). On May 29, 2012, the Plaintiff

through its legal representative sent the Defendant a notification containing the above statement.

(See attached Exhibit A) On May 30, 2012, Defendant sent notice to both the Plaintiff and its

legal representative that he disputed the validity of the debt and made a valid Qualified Written

Request (See attached Exhibit B). As outlined in 15 U.S.C. Sec. 1692g (5): Any collection

activities and communication during the 30-day period may not overshadow or be inconsistent

with the disclosure of the consumers right to dispute the debt or request the name and address of

the original creditor. By the filing of this foreclosure action on May 30, 2012, without allowing

time for a response and failing to acknowledge Defendants written dispute, Plaintiff is in violation

of 15 U.S.C. Sec. 1692g (5).

17. Plaintiff has violated provisions of the Federal Fair Debt Collection Practices Act at 15

USC 1692, et. seq. because it did not have any right to enforce collection of this Mortgage and

Note as it did not, nor does not have legal standing to do so. Furthermore, it did not comply with

all conditions precedent, it has no legally enforceable claim against the Defendants, it did not

comply with the contract requirements for acceleration, it had unclean hands, and it has harmed the

credit of Defendants.

9


10/21

DEFENDANTS FOURTEENTH AFFIRMATIVE DEFENSE

Violation of Federal Truth-in-Lending Act (TILA)

18. Upon information and belief, Plaintiff and/or its predecessor(s) in interest violated

various provisions of the Truth in Lending Act ("TILA"), which is codified at 15 U.S.C. section

1601 et seq. and Regulation Z section 226 et seq. by interalia:

(a) failing to provide the required disclosures and by failing to present disclosures in a

clear and conspicuous manner;

(b) failing to provide the required disclosures to the Defendant at least three (3) business

dayspriorto the consummation of the transaction, including two copies of notice of the

right to rescind;

(c) failing to provide accurate disclosures and then substantially changing the terms atclosing;

(d) failing to fully explain the type of mortgage that was to be provided;

(e) failing to properly and accurately disclose the "amount financed;"

(f) failing to clearly and accurately disclose the "finance charge;"

(g) failing to clearly and accurately disclose the "total of payments;"

(h) failing to clearly and accurately disclose the "annual percentage rate;"

(i) failing to clearly and accurately disclose the number, amounts and timing of payments

scheduled to repay the obligation;

(j) failing to clearly and accurately itemize the amount financed.

Defendant was never provided a good faith estimate or final loan application or explanation of the

mortgage before closing, pursuant to the Truth-in-Lending Act. Defendant had an absolute right to

cancel the transaction for three (3) business days after the transaction or within three (3) days of

receiving the proper disclosures from Plaintiff and/or its predecessor(s) in interest, after which,

they would not be responsible for any charge or penalty. Defendant was denied a reasonable

opportunity to evaluate the debt and make an informed decision. The transaction was subject to

TILA and rescission rights since it was a consumer credit transaction involving a lien or security

interest placed on the Defendant's principal dwelling, and was not a residential mortgage as

10


11/21

defined in 15 U.S.C. 1602(w), because the mortgage was not created to finance the acquisition of

the dwelling. As a result, Defendant is entitled to rescind the transaction and elects to do so.

19. Furthermore, 15 U.S.C. 1641(g) requires:

(1) In addition to other disclosures required by this subchapter, not later than 30 days after

the date on which a mortgage loan is sold or otherwise transferred or assigned to a third party, the

creditor that is the new owner or assignee of the debt shall notify the borrower in writing of such

transfer, including

(A) the identity, address, telephone number of the new creditor;

(B) the date of transfer;

(C) how to reach an agent or party having authority to act on behalf of the new

creditor;(D) the location of the place where transfer of ownership of the debt is recorded;

and

(E) any other relevant information regarding the new creditor.

Plaintiff, its agents and attorneys failed to provide defendants with notice of an assignment of the

mortgage loan in violation of 15 U.S.C. 1641(g).

DEFENDANTS FIFTHTEENTH AFFIRMATIVE DEFENSES

Violation of the Real Estate Settlement and Procedures Act (RESPA)

20. The transaction between the Plaintiff and Defendants was a federally related mortgage

loan as that term is defined in the Real Estate Settlement and Procedures Act (RESPA), 12

U.S.C. 2601(1). The closing, funding, and origination of this transaction are settlement

services as that term is defined in (RESPA), 12 U.S.C. 2601(3)

Defendants were charged and paid fees for which no or only nominal goods or services

were received, violating RESPAs prohibition against providers of settlement services from paying

referral fees and kickbacks. 12 U.S.C. 2607. Plaintiff and/or its predecessor(s) in interest, by

and through its agents and representatives, failed to provide The Housing and Urban Development

(HUD) special information booklet, a Mortgage Servicing Disclosure Statement, a good faith

estimate of settlement costs and other disclosures relating to settlement and adjustable rate

interest-only mortgages in advance of consummation of the loan, and an annual Escrow Disclosure

Statement for each year of the mortgage since its inception. In addition, Plaintiff and/or its

predecessor(s) in interest, by and through its agents and representatives, have misapplied costs and

11


12/21

fees to the loan, and charged fees already paid by Defendants thereby collecting payments for

amounts not owed. Moreover, Plaintiff and/or its predecessor(s) in interest has accepted fees,

kickbacks and/or other things of value in exchange for referrals of settlement service business,

and/or split fees and received unearned fees for services not actually performed; Said violations of

RESPA subject Plaintiff to a civil penalty of three (3) times the amount of any charge paid forsettlement services. 12 U.S.C. 2607(d)(2).

DEFENDANTS SIXTEENTH AFFIRMATIVE DEFENSE

Violation of HOEPA

21. Upon information and belief, Plaintiff and/or its predecessor(s) in interest violated

various provisions of the Home Ownership Equity Protection Act ("HOEPA") pursuant to 15 USC

1639 et seq. by failing to make proper disclosures and committing intentional predatory lending

by including prohibited terms. These violations provide an extended three year right to rescission

and enhanced monetary damages for the Defendants.

DEFENDANTS SEVENTEENTH AFFIRMATIVE DEFENSE

Lack of Notice of Assignment, Sale or Transfer of Servicing

[24 C.F.R. 3500.21]

22. The Plaintiff is Wells Fargo Bank, NA. The lender on the note is American Mortgage

& Financial Solutions, Inc.. Plaintiff claims that it owns and holds the note and mortgage. The

Plaintiff claims that the note and mortgage were assigned to it. The Defendant, as a borrower, was

not provided with any notice of a sale, assignment or transfer in servicing as required pursuant to

24 C.F.R. 3500.21(d), which provides: Notices of Transfer; loan servicing. (1) Requirement for

notice. (i) Except as provided in this paragraph (d)(1)(i) or paragraph (d)(1)(ii) of this section, each

transferor servicer and transferee servicer of any mortgage servicing loan shall deliver to the

borrower a written Notice of Transfer, containing the information described in paragraph (d)(3) of

this section, of any assignment, sale, or transfer of the servicing of the loan. The following

transfers are not considered an assignment, sale, or transfer of mortgage loan servicing forpurposes of this requirement if there is no change in the payee, address to which payment must be

delivered, account number, or amount of payment due:

12


13/21

(A) Transfers between affiliates; (B) Transfers resulting from mergers or acquisitions of

servicers or subservicers; and (C) Transfers between master servicers, where the subservicer

remains the same.

(2) Time of notice. (i) Except as provided in paragraph (d)(2)(ii) of this section: (A) The transferor

servicer shall deliver the Notice of Transfer to the borrower not less than 15 days before the

effective date of the transfer of the servicing of the mortgage servicing loan; (B) The transferee

servicer shall deliver the Notice of Transfer to the borrower not more than 15 days after the

effective date of the transfer; and (C) The transferor and transferee servicers may combine their

notices into one notice, which shall be delivered to the borrower not less than 15 days before the

effective date of the transfer of the servicing of the mortgage servicing loan. (ii) The Notice of

Transfer shall be delivered to the borrower by the transferor servicer or the transferee servicer notmore than 30 days after the effective date of the transfer of the servicing of the mortgage servicing

loan in any case in which the transfer of servicing is preceded by:(A) Termination of the contract

for servicing the loan for cause; (B) Commencement of proceedings for bankruptcy of the servicer;

or (C) Commencement of proceedings by the Federal Deposit Insurance . . .

DEFENDANTS EIGHTEENTH AFFIRMATIVE DEFENSE

Abuse of Process

23. Plaintiff, its agents and attorneys made an illegal, improper, or perverted use of

process and had an ulterior motive or purpose in exercising the illegal, improper or perverted

process. Plaintiff, its agents and attorneys had no legal justification to bring an action to try to

foreclose upon Defendants property and Defendant was injured and irreparably harmed as a

result of Plaintiffs actions and that of its agents and/or attorneys.

DEFENDANTS NINETEENTH AFFIRMATIVE DEFENSE

Collateral Source Payments

23. Defendant demands credit for and application of any and all collateral source payments

Plaintiff, its predecessors in interest, co-owners, trust beneficiaries, certificate holders, or any

others associated with this Note and Mortgage have received or will be entitled to receive from any

source whatsoever as a result of the default claimed, including credit default insurance, credit

default swaps, whether funded directly by insurance and/or indemnity agreement or indirectly paid

13


14/21

or furnished by means of federal (i.e. TARP funds) assistance on an apportioned basis for loans or

groups of loans to which the subject mortgage loan of the action is claimed.

ADDITIONAL DEFENSES

24. Defendant reserves the right to pursue such additional defenses as may be proved in thecourse of litigation and to make any counter-claims as may be appropriate.

Defendant is appearingPro se, and pray that not only will his Answer be liberally

construed and held to less stringent standards than formal pleadings drafted by lawyers. In Re.

Erickson v. Pardus, 551 U.S. 89, 94 (2007), but at minimum, that they be allowed to amend their

Answer to correct any and all deficiencies. In accordance with the Supreme Court of the United

Statespro se Pleadings MAY NOT be held to the same standard as a lawyers and/or attorneys;

and whose motions, pleadings and all papers may ONLY be judged by their function and never

their form. See: Haines v. Kerner; Platsky v. CIA;Anastasoff v. United States. See also: Platsky v.

C.I.A., 953 f.2d. 25; In re Platsky: court errs if court dismisses the pro se litigant without

instruction of how pleadings are deficient and how to repair pleadings.

WHEREFORE Defendant, for all the foregoing reasons, requests this Court deny all

relief prayed for by Plaintiff and dismiss the complaint with prejudice, enter an Order declaring the

subject transaction rescinded with the result that Plaintiffs security is void and unenforceable,

canceling the mortgage of record, quieting title to the Property to the Defendant, award Defendant

actual compensatory or statutory damages, costs, and any and all other relief, including declaratory

and injunctive relief, to which Defendant may be entitled and for such other and further relief this

Court deems just and proper.

Respectfully submitted on this ____ day of June, 2012 by:

____________________________

Robert A. Hopkins, Pro-Se8011 Mackinac Cv

Fort Wayne, IN 46835

260-755-3496

14


15/21

Verified Affidavit

I, Robert A. Hopkins, Defendant, having been duly sworn, under penalty of perjury, deposes and

says that I am over the age of eighteen (18) years and am mentally competent to testify. I currently

reside at 8011 Mackinac Cv, Fort Wayne, IN 46835.

I declare that, to the best of my knowledge and belief, the information herein is true and correct

and further affirm that all of my Answers and Defenses stated in my Answer to Foreclosure

Complaint are true and correct to the best of my knowledge and belief.

Further, as a reiteration to my stated Affirmative Defenses, in January of 2012 and again in April

of 2012, I requested help from Wells Fargo Bank, NA, Plaintiff and as instructed by their

representatives, applied for a modification under The Home Affordable Modification Program

(HAMP). To-date, I have not received an answer to my application. In addition, Wells Fargo

Bank, NA has not offered to help me pursue any other loss mitigation option that may be available

to me. Additionally, Plaintiff has failed to comply with the requirements of the National Housing

Act, 12 U.S.C. 1701X(c)(5), under which Plaintiff is required to complete pre-foreclosure

counseling for the Defendant. Moreover, I have shown herein that Wells Fargo, NA and/or it

predecessors has committed fraud upon the Court, lacks standing to foreclose on my Property, has

failed to Comply with Federal Loan Servicing Requirements, violated my rights under HUD,

TILA, RESPA, the FDCPA, and HOEPA, thereby entitling me to all appropriate relief provided

for by both federal and state statutes.

Dated this _____day of June, 2012 By: _______________________________Robert A. Hopkins, Defendant,Pro Se

Subscribed and sworn to before me, this ____day of June, 2012.

Seal

____________________________Notary Public

My Commission Expires: _____________________

15


16/21

Wells Fargo Bank, NA v. Robert A. Hopkins, et. al. 02D01-12 05-MF 708

CERTIFICATE OF SERVICE

The undersigned certifies that a true copy of this document has been sent by U.S. Certified

Mail to Kathleen M. Hetrick, Attorney for Plaintiff at the law firm of Feiwell & Hannoy, P.C., 251

N. Illinois Street, Suite 1700, Indianapolis, IN 46204-1944, and by regular U.S. Mail to

Brendonwood Park Apts, Defendant, 1004 Fayette Dr. Ft. Wayne, IN 46816, Schelm William O

DDS, Defendant, 5933 Stellhorn Rd, Ft. Wayne, IN 46815, Centennial Wireless, Defendant, 3349

State Route 138, Bldg A, Wall Township, NJ 07719, Candlelite Apts, LLC, Defendant, James H

Calkins, 522 Pinegrove Ln, Ft. Wayne, IN 46807, Checks USA, Defendant, 2020 Broadway, Ft.

Wayne, IN 46802 and to Chapmans Bridge Community, Defendant, Lisa Downey, 10808 La

Cabreah Ln, Ft. Wayne, IN 46845 on this ______ day of June , 2012.

____________________________

Robert A. Hopkins, Pro-Se8011 Mackinac Cv

Fort Wayne, IN 46835

260-755-3496


EXHIBIT A pg 1-2

16


17/21


EXHIBIT A pg 2-2

17


18/21


EXHIBIT B pg 1-3

18


19/21


EXHIBIT B pg 2-3

19


20/21


EXHIBIT B pg 3-3

20


21/21


Ans to Complaint

Documents

Transcript of Ans to Complaint