Kansas Foreclosure Defense Answer, Counterclaims, and Loss Mitigation Package

KANSAS FORECLOSURE DEFENSE — ANSWER, COUNTERCLAIMS, AND LOSS MITIGATION PACKAGE

PART 1 — PRE-DEFENSE INTAKE CHECKLIST (Attorney Use)

Client: [_______________________________] File No.: [____________]
Property: [___________________________________________________________]
County: [_______________________] Date of intake: [__/__/____]

Documents to collect

☐ Original Note with all endorsements/allonges
☐ Recorded Mortgage
☐ All recorded Assignments of Mortgage (MERS history)
☐ Demand / breach letter (typically 30-day cure under contract)
☐ Fair Debt Letter (15 U.S.C. § 1692g) from servicer/firm
☐ Petition for Foreclosure as filed in District Court
☐ Summons and Return of Service (K.S.A. § 60-301 et seq.)
☐ Loan payment history (life-of-loan)
☐ All loss mitigation correspondence (12 C.F.R. § 1024.41)
☐ Escrow analyses
☐ HUD-1 / Closing Disclosure from origination
☐ Truth-in-Lending disclosures
☐ QWR/NOE responses (12 U.S.C. § 2605(e))
☐ Credit reports (three bureaus)
☐ Bankruptcy discharge (if applicable)
☐ Homestead designation (Kansas homestead exemption — Kan. Const. art. 15, § 9; K.S.A. § 60-2301)

Threshold issues

☐ Was the contractual 30-day notice of default/right to cure sent?
☐ Did borrower receive 12 C.F.R. § 1024.39 early intervention?
☐ Was a complete loss mitigation application submitted more than 37 days before sale (dual-tracking bar)?
☐ Does plaintiff hold the original Note (standing)?
☐ Are all Assignments of Mortgage recorded and unbroken (chain of title)?
☐ Verify K.S.A. § 60-2410(a) publication compliance (three consecutive weeks; last 7–14 days pre-sale)
☐ Verify sale location is the county courthouse (§ 60-2410(b))
☐ Statutory redemption period under § 60-2414 — 12 months (owner-occupied) or 3 months
☐ Has lender asked the court to shorten redemption (e.g., abandonment finding)?
☐ Fair-value defense to deficiency
☐ Kansas Homestead exemption — primary residence
☐ SCRA — 50 U.S.C. § 3953
☐ Chapter 13 bankruptcy referral
☐ Statute of limitations (K.S.A. § 60-511 — 5 years on written contract)

PART 2 — VERIFIED ANSWER, AFFIRMATIVE DEFENSES, AND COUNTERCLAIMS

Caption

Answer

COMES NOW Defendant [BORROWER NAME] ("Defendant"), through undersigned counsel, and for Answer to Plaintiff's Petition for Foreclosure, states:

1. Defendant [admits / denies / lacks knowledge sufficient to form a belief and therefore denies] the allegations contained in Paragraph 1.

2. Defendant [admits / denies / lacks knowledge] the allegations contained in Paragraph 2.

3. Defendant specifically denies that Plaintiff is the holder of the original Note or otherwise has standing to enforce the Note pursuant to K.S.A. § 84-3-301.

4. Defendant specifically denies that Plaintiff has satisfied the contractual conditions precedent to acceleration and foreclosure, including any notice-of-default requirement in the Mortgage.

5. Defendant specifically denies the amount alleged to be due and demands strict proof.

Affirmative Defenses

FIRST — Failure to State a Claim. K.S.A. § 60-212(b)(6).

SECOND — Lack of Standing / Real Party in Interest. K.S.A. § 60-217. Plaintiff is not the holder of the original Note bearing proper endorsements.

THIRD — Failure to Satisfy Conditions Precedent. Plaintiff failed to send a contractually compliant notice of default and to allow the contractual cure period.

FOURTH — Violation of RESPA / Regulation X, 12 C.F.R. § 1024.41 (Dual Tracking). Plaintiff moved for foreclosure judgment or sale while a complete loss mitigation application was pending.

FIFTH — Payment / Accord and Satisfaction. Defendant has tendered all payments or Plaintiff accepted partial payments without reservation, waiving default.

SIXTH — Estoppel and Waiver. Plaintiff promised forbearance or modification review upon which Defendant reasonably relied.

SEVENTH — Unclean Hands. Misapplied payments, force-placed insurance, unauthorized fees, dual-tracking.

EIGHTH — Unconscionability. K.S.A. § 16a-5-108 (Kansas UCCC unconscionability).

NINTH — Truth in Lending Act / Kansas UCCC Violations. [Specify.]

TENTH — Statute of Limitations. K.S.A. § 60-511.

ELEVENTH — Servicemembers Civil Relief Act, 50 U.S.C. § 3953. [If applicable.]

TWELFTH — Reservation. Defendant reserves the right to amend.

Counterclaims

COUNT I — Violation of RESPA / Regulation X, 12 U.S.C. § 2605; 12 C.F.R. §§ 1024.35, 1024.36, 1024.41. Plaintiff failed to acknowledge a QWR/NOE within 5 business days, failed to respond within 30 business days, and/or moved for judgment while a complete loss mitigation application was pending (dual-tracking). Actual damages, statutory damages up to $2,000 per violation, costs, attorney fees.

COUNT II — Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Plaintiff's servicer is a "debt collector" because the loan was in default at acquisition. False, deceptive, and misleading representations regarding the amount, character, and legal status of the debt. Actual damages, statutory damages up to $1,000, costs, fees under § 1692k.

COUNT III — Fair Credit Reporting Act, 15 U.S.C. § 1681s-2(b). Plaintiff failed to conduct a reasonable investigation after Defendant disputed tradeline information through a CRA. Actual damages, statutory damages, punitive damages for willful violation, costs, fees.

COUNT IV — Kansas Consumer Protection Act, K.S.A. § 50-623 et seq. Plaintiff engaged in deceptive and unconscionable acts in connection with a consumer transaction. Civil penalty under § 50-636; actual damages; attorney fees under § 50-634.

COUNT V — Breach of Contract and Breach of Implied Covenant of Good Faith and Fair Dealing.

COUNT VI — Declaratory Judgment, K.S.A. § 60-1701 et seq. Defendant seeks a declaration that Plaintiff lacks standing, that the notice was defective, and that the foreclosure may not proceed.

Prayer for Relief

WHEREFORE, Defendant respectfully prays this Court:
A. Dismiss the Petition with prejudice;
B. Enter judgment for Defendant on all Counterclaims;
C. Award actual, statutory, and punitive damages;
D. Award reasonable attorney fees and costs;
E. Declare any sheriff's sale void;
F. Confirm Defendant's full 12-month statutory redemption period under K.S.A. § 60-2414;
G. Grant such other relief as is just and equitable.

Verification

I, [DEFENDANT NAME], declare under penalty of perjury under the laws of the State of Kansas pursuant to K.S.A. § 53-601 that the factual allegations in the foregoing Answer and Counterclaims are true and correct to the best of my knowledge.

Dated: [__/__/____] [______________________________]
[DEFENDANT NAME]

Respectfully submitted,

[______________________________]
[ATTORNEY NAME], KS Sup. Ct. No. [_______]
[FIRM NAME]
[ADDRESS] | [CITY], KS [_____]
Tel: [____________] Email: [____________]
ATTORNEY FOR DEFENDANT

PART 3 — MOTION TO DISMISS FOR LACK OF STANDING

Defendant moves to dismiss under K.S.A. § 60-212(b)(6) and § 60-217 because Plaintiff is not the real party in interest:

1. To enforce a negotiable instrument under K.S.A. § 84-3-301, the plaintiff must be (a) the holder of the instrument, (b) a nonholder in possession with the rights of a holder, or (c) entitled to enforce under § 84-3-309 or § 84-3-418(d).

2. Plaintiff has not produced the original Note bearing endorsements demonstrating holder status.

3. Recorded assignments are [defective / incomplete / executed by parties without authority].

4. Kansas courts strictly enforce standing requirements at the time the foreclosure petition is filed.

WHEREFORE Defendant requests dismissal with prejudice.

PART 4 — MOTION TO PRESERVE FULL 12-MONTH REDEMPTION — K.S.A. § 60-2414

Defendant respectfully moves the Court to confirm the full twelve (12) month statutory redemption period for the subject owner-occupied residential property pursuant to K.S.A. § 60-2414. In support, Defendant states that (a) the property is Defendant's homestead and has been continuously occupied; (b) Defendant has paid one-third (1/3) or more of the original indebtedness; (c) there is no abandonment or waste; and (d) any attempt by Plaintiff to shorten the redemption period should be denied.

PART 5 — LOSS MITIGATION APPLICATION PACKAGE (RESPA 12 C.F.R. § 1024.41)

Cover letter

[__/__/____]

[SERVICER NAME — Loss Mitigation Department]
[ADDRESS]

Re: Loan No. [_______________]
Borrower: [______________________________]
Property: [______________________________________________________]

I hereby submit a complete loss mitigation application under 12 C.F.R. § 1024.41. Please acknowledge within 5 business days. This is also a QWR/NOE/RFI under 12 U.S.C. § 2605(e).

Sincerely,

[______________________________] Date: [__/__/____]

Application contents checklist

☐ Borrower Assistance Form (Form 710 or equivalent)
☐ IRS Form 4506-C (signed)
☐ 2 years tax returns
☐ 2 months pay stubs (or YTD P&L)
☐ 2 months bank statements (all pages)
☐ Hardship affidavit
☐ Monthly household budget
☐ Utility bill (occupancy)
☐ Recent mortgage statement
☐ Property tax statement
☐ Homeowner's insurance dec page
☐ HOA dues statement (if applicable)
☐ Award letters for SSI/SSDI/unemployment/child support
☐ Kansas Housing Resources Corporation / Kansas Homeowner Assistance Fund referral confirmation
☐ HUD-approved housing counseling certificate

PART 6 — LOAN MODIFICATION REQUEST LETTER

[__/__/____]

Re: Loan No. [_______________]
Borrower: [_______________________________]
Property: [_______________________________]

I request a loan modification. Hardship: ☐ Job loss ☐ Income reduction ☐ Medical ☐ Death ☐ Divorce ☐ Disability ☐ Natural disaster ☐ Other: [_________]

Sincerely,

[______________________________]
[BORROWER]

PART 7 — DISCOVERY DEMAND (FIRST SET)

Request for Production of Documents

1. Original Note with all endorsements/allonges and chain-of-custody log.
2. All recorded Assignments of Mortgage.
3. Pooling and Servicing Agreement and loan-level data.
4. Life-of-loan payment history.
5. Escrow analyses.
6. Notice of default / breach letter and proof of mailing.
7. All loss mitigation submissions, denial notices, and underwriting worksheets.
8. All policies on loss mitigation and dual-tracking.
9. Custodian-of-records log for the original Note.
10. Credit-bureau tradeline reporting.
11. Force-placed insurance invoices.

Interrogatories

1. Identify the current holder of the Note and its physical location.
2. State the date Plaintiff acquired the Note and consideration paid.
3. Identify each transferor and transferee in the chain of title.
4. Identify each loss mitigation option reviewed and the reason for denial.
5. State whether the loan was in default at the time of acquisition (FDCPA inquiry).
6. Identify each person who has personal knowledge of the alleged default.

Requests for Admission

1. Admit Plaintiff did not have possession of the original Note when the Petition was filed.
2. Admit the contractual notice of default does not contain all elements required by the Mortgage.
3. Admit a complete loss mitigation application was pending when Plaintiff moved for judgment.

PART 8 — BANKRUPTCY REFERRAL CHECKLIST

☐ Chapter 13 cure of arrears 36–60 months (11 U.S.C. § 1322(b)(5))
☐ Chapter 7 strip-off of wholly underwater junior liens (limited)
☐ Automatic stay under 11 U.S.C. § 362 halts sheriff's sale
☐ Verify means test, filing fees, credit counseling certificate
☐ Refer to Kansas bankruptcy panel attorney: [______________________________]
☐ Provide payoff, arrears, monthly payment, valuation, equity

PART 9 — RESOURCES

• Kansas Legal Services: https://www.kansaslegalservices.org
• Kansas Housing Resources Corporation (Kansas Homeowner Assistance Fund): https://kshousingcorp.org
• CFPB find-a-housing-counselor: https://www.consumerfinance.gov/find-a-housing-counselor/
• K.S.A. § 60-2410: https://ksrevisor.gov/statutes/chapters/ch60/060_024_0010.html
• K.S.A. § 60-2414 (Redemption): https://ksrevisor.gov/statutes/chapters/ch60/060_024_0014.html

END OF KANSAS FORECLOSURE DEFENSE PACKAGE