IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ELRICK HARRIS; )

)

)

Plaintiff, )

)

v. ) CIVIL ACTION NUMBER:

)

OPTION ONE MORTGAGE ) 2:06-cv-630-ID

CORPORATION; H&R BLOCK )

MORTGAGE CORPORATION; )

PREMIER MORTGAGE )

FUNDING, INC.; and MORGAN )

TITLE SERVICE, LLC; )

)

Defendants. )

ANSWER OF DEFENDANTS OPTION ONE MORTGAGE

CORPORATION AND H&R BLOCK MORTGAGE CORPORATION

COME NOW defendants Option One Mortgage Corporation ("Option 

One") and H&R Block Mortgage Corporation ("H&R Block"), (collectively 

referred to herein as "Defendants"), and for answer to plaintiff’s Complaint filed in 

this matter state as follows:

FIRST DEFENSE

The paragraphs below correspond to the same-numbered paragraphs in the 

Complaint. Unless specifically admitted herein, all allegations set forth in the 

Complaint are expressly denied. 

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PARTIES

1. Admitted, upon information and belief.

2. Defendants admit that Option One is a California corporation 

qualified to do business in Alabama and deny all remaining allegations in 

paragraph 2 of the Complaint.

3. Defendants admit that H&R Block is a Massachusetts corporation 

qualified to do business in Alabama and deny all remaining allegations in 

paragraph 3 of the Complaint.

4. Admitted, upon information and belief.

5. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 5 of the Complaint and therefore 

deny the same.

JURISDICTION and VENUE

6. Defendants admit that this Court has federal question jurisdiction 

over this case but deny that they have violated any of the statutory provisions 

identified in paragraph 6 of the Complaint.

7– 9. The allegations in paragraphs 7-9 of the Complaint state conclusions 

of law to which no response is required.

10. Defendants admit that plaintiff is a resident of Montgomery County 

on information and belief and that the real property which is the subject of the loan 

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at issue in this case is situated in Montgomery County. Defendants also admit that 

they do business in Montgomery County. Defendants are without sufficient 

information or knowledge to admit or deny the remaining allegations in paragraph 

10 of the Complaint at this time and therefore deny the same.

FACTUAL ALLEGATIONS

11. Admitted.

12. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 12 of the Complaint and 

therefore deny the same.

13. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 13 of the Complaint and 

therefore deny the same.

14. Defendants admit that the loan at issue in this case is subject to an 

adjustable rate note. Defendants are without sufficient information or knowledge 

to admit or deny the remaining allegations in paragraph 14 of the Complaint at this 

time and therefore deny the same.

15-18. Denied.

19. Admitted.

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20. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 20 of the Complaint and 

therefore deny the same.

21-28. Denied.

COUNT I

Negligence

29. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-28 above.

30-43. Denied.

COUNT II

Negligent Supervision

44. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-43 above.

45. Denied.

COUNT III

Promissory Fraud

Fraud

46. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-45 above.

47-52. Denied.

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COUNT IV

Negligence Per Se

53. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-52 above.

54-55. Denied.

COUNT V

Violations of the Federal Truth in Lending Act

56. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-55 above.

57. Defendants deny the allegations in paragraph 57 of the Complaint, 

including all subparts thereto.

COUNT VI

Violations of Real Estate Settlement Procedures Act

58. Defendants adopt and reassert their responses and defenses to

paragraphs 1-57 above.

59. The allegations in paragraph 59 of the Complaint state conclusions of 

law to which no response is required. To the extent Plaintiff contends that 

Defendants violated the statutory provisions set forth in paragraph 59, such 

allegations are denied. 

60-63. Denied.

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COUNT VII

Violations of the Fair Credit Reporting Act

64. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-63 above.

65-69. Denied.

COUNT VIII

Violations of the Equal Credit Opportunity Act

70. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-69 above.

71. The allegations contained in paragraph 71 of the Complaint state 

legal conclusions to which no response is required.

72. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 72 of the Complaint and 

therefore deny the same.

73. Defendants are without sufficient information or knowledge at this 

time to admit or deny the allegations in paragraph 73 of the Complaint and 

therefore deny the same.

74-76. Denied.

COUNT IX

Damages

77. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-76 above.

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78-79. Defendants deny Plaintiff’s allegations contained in paragraphs 78 

and 79 of the Complaint, including all subparts thereto.

PRAYER FOR RELIEF

80. Defendants adopt and reassert their responses and defenses to 

paragraphs 1-79 above.

81. Defendants deny Plaintiff’s allegations contained in paragraph 81 of 

the Complaint, including all subparts thereto. Defendants further deny that 

Plaintiff is entitled to any of the relief or damages demanded in paragraph 81.

SECOND DEFENSE

Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

THIRD DEFENSE

Defendants are not guilty of any of the allegations made against them in the 

Complaint.

FOURTH DEFENSE

Plaintiff’s claims are barred by his own contributory negligence.

FIFTH DEFENSE

Plaintiff’s claims are barred by the doctrine of assumption of risk.

SIXTH DEFENSE

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To the extent plaintiff has suffered any damages, such damages were caused 

by, and are the responsibility of persons, parties, and/or entities other than 

Defendants, including plaintiff’s own contributory negligence.

SEVENTH DEFENSE

Plaintiff’s claims are barred to the extent they are based on the acts of third 

parties over whom Defendants had no control or right of control, or for whom they 

are not responsible.

EIGHTH DEFENSE

Defendants plead the applicable statute of limitations to each of plaintiff’s 

claims.

NINTH DEFENSE

Plaintiff’s claims are barred by the doctrines of waiver, set off, recoupment, 

estoppel, laches, and equitable subrogation.

TENTH DEFENSE

Some or all of Plaintiff’s claims are barred by the doctrines of accord and 

satisfaction, payment, and/or release.

ELEVENTH DEFENSE

Some or all of plaintiff’s claims are barred by the doctrines of ratification, 

consent, and acquiescence.

TWELFTH DEFENSE

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Plaintiff has not suffered any injury by reason of any act or omission by 

Defendants and does not have any right or standing to assert the claims at issue. 

THIRTEENTH DEFENSE

Plaintiff’s claims fail, in whole or in part, because plaintiff has suffered no 

damages.

FOURTEENTH DEFENSE

Plaintiff’s recovery under the claims alleged in the Complaint is barred

and/or limited due to his failure to mitigate his alleged damages.

FIFTEENTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by unclean hands and other 

equitable doctrines.

SIXTEENTH DEFENSE

Plaintiff’s claims are barred because he accepted the benefit of the 

transaction at issue.

SEVENTEENTH DEFENSE

Plaintiff’s claims are barred by the terms of the promissory note and 

mortgage which he signed.

EIGHTEENTH DEFENSE

Plaintiff’s claims are barred by the Statute of Frauds and/or the parole 

evidence rule.

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NINETEENTH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by his voluntary payment of 

the sums at issue.

TWENTIETH DEFENSE

Plaintiff’s claims are barred, in whole or in part, by the plaintiff’s binding, 

voluntary agreement to the terms and conditions of the loan at issue.

TWENTY-FIRST DEFENSE

To the extent plaintiff’s Complaint attempts to state a claim for fraud, it fails 

to comply with Rule 9(b) of the Federal Rules of Civil Procedure, and does not 

give sufficient notice of the circumstances surrounding any alleged fraud.

TWENTY-SECOND DEFENSE

Defendants’ actions were justified and are immune from liability.

TWENTY-THIRD DEFENSE

Defendants are not liable because they acted in good faith at all times and in 

conformity with applicable rules, regulations, and statutory interpretations.

TWENTY-FOURTH DEFENSE

Defendants affirmatively invoke and assert all defenses and rights created by 

and under the Truth-in-Lending Act (TILA), 15 U.S.C. §§ 1601, et seq., including, 

but not limited to, the following defenses: the one-year statute of limitations; good 

faith conformity with Federal Reserve Board rulings, regulations and 

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interpretations; bona fide efforts to prevent and/or correct error; unintentional 

violations; and bona fide errors notwithstanding the maintenance of procedures 

reasonably adopted to avoid any error.

TWENTY-FIFTH DEFENSE

Any award of punitive damages in this case would violate Defendants’ rights 

under the Constitutions of the United States of America and/or the State of 

Alabama.

TWENTY-SIXTH DEFENSE

Plaintiff’s claims are subject to arbitration pursuant to the Federal 

Arbitration Act, 9 U.S.C. § 1, et seq., to the extent an arbitration clause exists in a 

contract underlying plaintiff’s claims.

TWENTY-SEVENTH DEFENSE

Some or all of plaintiff’s claims are preempted by federal law and/or the 

Alabama Consumer Credit Protection Act, Ala. Code § 5-19-1, et seq.

Defendants reserve the right to amend this Answer and/or assert additional 

defenses as discovery progresses in this case. To the extent that any of the 

foregoing allegations in the Complaint have not been expressly admitted or denied, 

they are hereby denied.

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Respectfully submitted,

/s/ Stephen A. Walsh

Stephen A. Walsh

Attorney for Defendants

Option One Mortgage Corporation and 

H & R Block Mortgage Corporation

Adams and Reese LLP

2100 Third Avenue North, Suite 1100

Birmingham, AL 35203-3367

Telephone: (205) 250-5000

Facsimile: (205) 250-5034

Email: stephen.walsh@arlaw.com

OF COUNSEL:

ADAMS AND REESE LLP

2100 Third Avenue North, Suite 1100

Birmingham, Alabama 35203-3367

Telephone: (205) 250-5000

Facsimile: (205) 250-5034

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CERTIFICATE OF SERVICE

I hereby certify that on August 31, 2006, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which will send notification 

of such filing to the following:

Robert E. Kirby, Jr., Esquire 

SMITH, HANSON & KIRBY, LLC

Attorney for Plaintiff

4401 Gary Avenue

Fairfield, AL 35064

Richard M. Allen, Esquire 

Chad W. Bryan, Esquire

CAPELL & HOWARD

150 South Perry Street (36104)

Post Office Box 2069

Montgomery, AL 36102-2069

/s/ Stephen A. Walsh

OF COUNSEL

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