IN THE SUPERIOR COURT OF DEKALB COUNTY STATE OF GEORGIA

EVERBANK Plaintiff, vs. CYRIL MUNGAL (Pro se) Defendant ) ) ) ) ) ) ) ) CASE NO .12cv7511-2

OPPOSITION FOR SUMMARY JUDGEMENT FOR DISPOSARY

COMES NOW Defendant, Cyril Mungal named in this Complaint do oppose for summary judgment for dispossessory on subject property located at premises 5384 Ridgemere Court, Stone Mountain DeKalb County, Georgia 30083. Defendant is not a tenant of sufferance but a victim of wrongful foreclosure by EverBank. Defandant seeks a Motion to dismiss Plaintiff appeal for Summary Judgment pending the outcome of the Defendants verified complaint now removed to Federal District Court by Plaintiffs. The Standard of review is De Novo. (SEE EXHIBIT #1). FACTS / Background 1. On January 27th, 2003 Defendant signed a mortgage with Union Planters Bank, N.A for the amount of $145,650.00 2. On August 5th 2008 Regions Bank d/b/a Regions Mortgage, Inc. successor by mergers with Union Planters Bank, NA assigned the Defendants mortgage loan to EverBank.

3. On January 2011 Defendant requested a loan modification from EverBank due to hardship from divorce proceedings. 4. On October 11th, 2011 Defendant received a letter of foreclosure from Shapiro & Swertferger,LLP with a scheduled sale date for November 1st, 2011. 5. On October Defendant filed bankruptcy to prevent sale of property and to obtain more time to continue negotiating a loan modification with EverBank. 6. Over 3 months - from October 2011 to January 2012 - the Defendant repeatedly asked the Plaintiff to validate their standing as required by Federal and Georgia law. 7. On October 14, 2011, then again January 10th, 2012 Defendant submitted qualified written letters of request citing his rights to do so under 15 USC 1691 -Equal Credit Opportunity Act and asking the Plaintiff to validate his debt and their standing as secured creditor, attorney, servicer, master servicers, investor, trustee, etc. (See EverBank acknowledgements of Qualified Written Request) (EXHIBIT 2). 8. The Plaintiff has consistently refused to clarify such standing. 9. In February, 2012 EverBanks attorneys Shapiro & Swertfeger, LLP sent Defendant a Notice of Foreclosure, advertising that his home at 5382-4 Ridgemere Court Stone Mountain, GA (subject property) would be sold at public auction on March 6th, 2012. 10. Defendant filed bankruptcy to stop the foreclosure and gain more time to continue to work with EverBank.

11. March 6th, 2012 EverBank wrongfully foreclosed on subject property in violation OCGA 44-14-162.2(a-c) requiring that only the secure creditor send the notice, and execute the power of sale. 12. Accordingly on May 8th,2012 Defendant Mungal file a verified WRONGFUL FORECLOSURE complaint in the Superior of DeKalb County disputing EverBanks claim to be the secured creditor and presenting evidence that Fannie Mae was in fact the closest thing to a secured creditor. (12CV592110). Hence EverBank had violated GA notice and foreclosure requirements as stipulated in OCGA 44-14-162.2 (a-c) 13. This verified complaint was filed prior to the dispossessory hearing of May 23rd,2012. 14. This complaint was included in the Defendants dispossessory answer and counter claim. 15. After Defendant filed the notice of appeal of the Magistrate Court Judges ruling, the Plaintiffs have exercised their constitutional right of removal and on July 3rd,2012 removed the Defendant Mungals case to Federal Court claiming Diversity. ARGUMENTS

Denial of Due Process 16. The Magistrate Judge Corneill A. Stephens erred in ignoring Defendants defenses and counterclaims. 17. While acknowledging the disagreement, Magistrate Judge Corneill A. Stephens said that it was beyond his Court to settle it. Instead of issuing a writ, he should have moved the case to this court.

18. Given that the legislature has allowed non-judicial foreclosure as the norm in the state, and given that lenders are not mandated by law or practice to offered homeowners a choice of judicial and non-judicial mortgages, the Defendanthomeowner will be denied due process if Summary Judgment is granted. 19. I beg the Courts indulgence to explain in plain writing. State and case law citations will be provided in later sections. a) Standing goes to the heart of all judicial proceedings. b) A person seeking the Courts relief must prove standing to seek such relief. c) To allow a person to access Court relief and State sanction and power, against another party, without the moving party proving standing is a classic denial of due process. d) The Plaintiff here seeks the Courts sanction of a disputed foreclosure action, and the Courts power to use the Sheriff and state resources to enforce an eviction while having nowhere prove standing. e) That might be acceptable in some instances, but here the Defendant home-owner has challenged the Plaintiffs claim of standing. f) While having the Defendant -Homeowner to begin a formal legal process to force the Plaintiff to prove standing is unduly burdensome enough, once done, the burden of proof should shift to the Plaintiffs those seeking State relief, sanction, and access to state resources. g) While the legislature intended to protect the Lender from unscrupulous homeowners who might delay the foreclosure process to the detriment of the rightful title holders and secured creditors, no one anticipated the extensive power of sale abuse, robo-signing, notary abuse, securitization of mortgage loans, etc. that is all too common among mortgage lenders.

EverBank has been fined by the Federal Government for their robo signing, notary abuse, securitization of mortgage loans, etc. (EXHIBIT 3). h) No longer can the presumption be that a challenge to a Lenders standing is an attempt by a deadbeat homeowner try to get a free house. i) Increasingly the question is or needs to be, is the lender trying to get a free house? j) There is a legitimate dispute k) There is a question of standing l) While the Plaintiffs have not admitted to any wrong-doing in this case, the industry has, and hence has lost the presumption of good faith and fair dealing. (SEE EXHIBIT #4) m) It is especially in light of the above that Plaintiff request for Summary Judgment should not be granted until the dispute can be settled in the appropriate Court. n) The Defendant is already paying rent into the Court, so the Plaintiff will not be harmed by this delay for justice. o) On the other-hand, the Defendant would be irrevocably harmed should he be unlawfully disposed of his home and forced to move.

JURISDICTION
20. The action before that court qualifies as a case of controversy. Seventh
Amendment to the Constitution States: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law."

NOT A TENANT

21. Defendants disputed that he was a tenant at suffrage since there has been no valid sale, valid foreclosure nor a valid recording of any deed of sale from any valid entity or legal person.

PLAINTIFF LACKS STANDING

22. Defendant showed that Plaintiff EverBank is not a proper party to bring this lawsuit and/or proceedings and lacks standing to file the same due to its failure to identify for whom Plaintiff EverBank is acting and that any entity named EverBank and Shapiro & Swertfeger, LLP. or any entity has the ability or authority to act in this matter. 23. Plaintiff violated Georgias Foreclosure Law which requires all foreclosure notices to include the name, address and telephone number of the individual who has authority to negotiate a loan modification. O.C.G.A. Section 44-14162.2 (See Exhibit #4,5 and 6)

VERIFIED COMPLAINT 24. Defendant showed that rights of ownership and rights of possession in this case were pending in the Superior Court of DEKALB County in Case No. 12CV5921-10

25. The complaint detailed allegations of WRONGFUL FORECLOSURE and constituted a legitimate dispute regarding ownership and possession rights which are in contest.

KEY EXCERPTS FROM THE COMPLAINT: (See Exhibit #7 for entire complaint)

I.

The Plaintiff- (Now Cyril Mungal) alleges that the Defendant-(Now EverBank) is not the secured creditor and has violated O.C.G.A. 44-14-162 (a-c) by commencing foreclosing on 5382-4 Ridgemere Court Stone Mountain, GA 30083

II.

on November 1st, 2011, then again on March 6th, 2012. While Defendant NOTICES OF FORECLURE and Sale confirmation letter listed Defendant EverBank as the creditor (EXHIBIT 2), Plaintiff alleges that Fannie Mae is the holder or trustee for the holder of the note.

III.

After the Defendant failed to validate their standing as requested by the Plaintiff, Plaintiff became suspicious and began his own research.

IV.

The assignment to EverBank, listed the Plaintiffs loan pool number pool number: 606439 indicating that Plaintiffs loan was securitized into a Mortgage Back Security (MBS) or some sort of pool of loans turned into a Extensive research has located the Plaintiffs loan in a Fannie Mae REMIC (Pool: 606439) CUSPID number (31388JV85 ) (See Exhibit 3) Definitions:
a.

REMIC: According to the Fanny Mae web site Real Estate Mortgage Investment Conduits (REMICs) create customized structuring of mortgage pass-through securities to redistribute cash flows and cater to a variety of market demands. Mortgage-backed securities are broken into different classes called tranches, which direct principal and interest to

predetermined groups of investors. Fanny Mae offers a variety of REMIC products. In addition, Fanny Mae works closely with dealers and investors to customize REMIC structures to meet the needs of investors.
b.

CUSIP Number: (from the SEC Website: http://www.sec.gov/answers/cusip.htm) CUSIP stands for Committee on Uniform Securities Identification Procedures. A CUSIP number identifies most securities, including: stocks of all registered U.S. and Canadian companies, and U.S. government and municipal bonds. The CUSIP systemowned by the American Bankers Association and operated by Standard & Poorsfacilitates the clearing and settlement process of securities. The number consists of nine characters (including letters and numbers) that uniquely identify a company or issuer and the type of security. A similar system is used to identify foreign securities (CUSIP International Numbering System).

V.

An extensive check of the DeKalb County Records for subject property shows that there is no recording of a transfer or assignment of Plaintiffs note or security deed from Fannie Mae or the authorized trustee to EverBank. According to O.C.G. A. 44-14-64 (a-c) only the documented secured creditor/holder in due course can foreclose on subject property. The security instrument or assignment thereof vesting the secured creditor with title to the security instrument shall be filed prior to the time of sale in the office of the clerk of the superior court of the county in which the real property is located. O.C.G.A. 44-14-162(b) (emphasis added). Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. O.C.G.A. 44-14-162.2(a) (emphasis added).

VI.

VII.

United States District Court Judge Amy Totenburg in Morgan vs. Ocwen Loan Servicing LLC. not only concurs, but makes clear the Georgia Supreme Court view on this matter: Georgia law authorizes the secured creditor, the holder of the obligation, to exercise a power of sale. See O.C.G.A. 44-14-162.2 The Georgia Supreme Court has clearly indicated that the right to foreclose lies with the party that holds the indebtedness: Could there be a more conclusive defense to the foreclosure than that the party prosecuting it was not the holder of the debt or demand secured by the mortgage, which he failed to produce when called on, and offered nothing to show that he controlled it, or to explain why it was not

forthcoming at the trial? Weems v. Coker, 70 Ga. 746, 749 (1883), cited by Truitt v. Moister, 11 B.R. 15 (Bankr.N.D. Ga. 1981); see also Bowen, 438 S.E.2d at 122; Boaz, 580 S.E.2d at 578; Cummings v. Anderson, 173 B.R. 959, 963 (Bankr. N.D. Ga. 1994) (foreclosure was null and void where the entity foreclosing did not have an actual assignment of the note and security deed), affd, 112 F.3d 1172 (11th Cir. 1997); Weston v. Towson, No. 5:04-CV-416, 2006 WL 2246206, at *6 (M.D. Ga. Aug. 4, 2006) ([T]he holder of the note continues to retain remedies under the security deed so long as the debt evidenced by the note has not been satisfied.).
VIII.

Further research calls into question the initial assignment of the Plaintiffs mortgage to from Regions to EverBank in August 2008. Since it wasnt until 2009 that Fannie Mae changed the Pooling and Service Agreement or Master Trust Agreement to allow for mortgage transfers out of the trust. In December 2008 Fannie Mae issued this directive: a. A new 2009 Single-Family Master Trust Agreement and servicer guidance that give Fannie Mae servicers the flexibility to remove a loan from an MBS pool once the loan is one month delinquent for the purpose of a loan modification. This applies only to loans backing securities issued on or after January1, 2009. Trust agreements for pools issued before that date do not allow for this flexibility, but as described above, Early Workout gives servicers the tool necessary to address problems loans as early as necessary, regardless of MBS pool date. (See Exhibit 4).

IX.

X.

Plaintiffs pool loan number clearly identifies it as having been placed in a pool prior to January 1, 2009. Hence his mortgage could not have been lawfully removed from the trust, therefore the lawful secured creditor is the Fannie Mae backed REMIC Trust.

XI.

EverBank has refused to establish that it is the authorized trustee, and/or if they have been duly authorized by Fannie Mae backed REMIC trust to foreclose on subject property.

XII.

Since they have refuse to provide the information, and have instead wrongfully foreclosed on Plaintiffs property, Plaintiff contends that only proper and formal

discovery will ferret out the securitization maze to further reveal that EverBank has no standing to either collect payments or foreclose on Plaintiffs mortgage.
XIII.

Plaintiff re-alleges that EverBank is not and was not the secured creditor at the time they commenced foreclosure on subject property and in laying false claim to his property has violated GA foreclosure laws and have caused Plaintiff undue hardship.

XIV.

WHEREFORE, Plaintiff respectfully requests that this Court enter a judgment against the Defendant as follows: c. That the March 6th, foreclosure on Plaintiffs home (subject property) be set aside.
d.

That Plaintiff be granted compensatory damages against the Defendant EVERBANK, in the amount of $200,000.00

e.

That Plaintiff is granted such other and further relief as the Court deems just and proper.

f.

That Plaintiff have a Jury trial to determine the issues

CONCLUSION
For the above reasons Defendants Prays: 1) That Summary Judgment not be granted to Plaintiff. 2) That any further dispossessory proceedings be stayed until DefendantMungals Complaint which has been removed to Federal District Court is resolved.

Respectfully Cyril Mungal

_________________________________ Cyril Mungal Pro Se Litigant

5384 Ridgemere Court Stone Mountain, GA 30083 678-474-7475 Cyril_mungal@hotmail.com

CERTIFICATE OF SERVICE I hereby certify that I have this day served Plaintiffs attorney Shapiro & Swertfeger, LLP , by serving the same by handing a copy of said Pleadings ,Answer & Cross-Complaint by U. S. Mail to: Shapiro & Swertfeger, LLP 2872 Woodcock Boulevard, Duke Building Suite 100 Atlanta, GA 30341