This action might not be possible to undo. Are you sure you want to continue?
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 Defendant’s 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 Defendant’s mortgage loan to EverBank.
9. 6. On October Defendant filed bankruptcy to prevent sale of property and to obtain more time to continue negotiating a loan modification with EverBank. (See EverBank acknowledgements of Qualified Written Request) (EXHIBIT 2). attorney. . trustee. advertising that his home at 5382-4 Ridgemere Court Stone Mountain.LLP with a scheduled sale date for November 1st. 2012 EverBank’s attorneys Shapiro & Swertfeger. On October 14. then again January 10th. 10. In February. servicer. 7. investor. On January 2011 Defendant requested a loan modification from EverBank due to hardship from divorce proceedings. 2012. Defendant filed bankruptcy to stop the foreclosure and gain more time to continue to work with EverBank.from October 2011 to January 2012 . 2011. 8. On October 11th. 5. master servicers. 2011. 2011 Defendant received a letter of foreclosure from Shapiro & Swertferger.the Defendant repeatedly asked the Plaintiff to validate their standing as required by Federal and Georgia law.3. LLP sent Defendant a Notice of Foreclosure. 4. 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. GA (subject property) would be sold at public auction on March 6th. etc. Over 3 months . The Plaintiff has consistently refused to clarify such standing.
and execute the power of sale. he should have moved the case to this court. While acknowledging the disagreement. Hence EverBank had violated GA notice and foreclosure requirements as stipulated in OCGA 44-14-162. The Magistrate Judge Corneill A. 12. Stephens erred in ignoring Defendant’s defenses and counterclaims.11. ARGUMENTS Denial of Due Process 16. 15. . 2012 EverBank wrongfully foreclosed on subject property in violation OCGA 44-14-162. 14.2(a-c) requiring that only the secure creditor send the notice.2 (a-c) 13. Magistrate Judge Corneill A. the Plaintiff’s have exercised their constitutional right of removal and on July 3rd. March 6th. This complaint was included in the Defendant’s dispossessory answer and counter claim.2012 removed the Defendant Mungal’s case to Federal Court claiming Diversity.2012. This verified complaint was filed prior to the dispossessory hearing of May 23rd.2012 Defendant Mungal file a verified WRONGFUL FORECLOSURE complaint in the Superior of DeKalb County disputing EverBank’s claim to be the ―secured creditor‖ and presenting evidence that Fannie Mae was in fact the closest thing to a ―secured creditor‖. Accordingly on May 8th. After Defendant filed the notice of appeal of the Magistrate Court Judge’s ruling. 17. Instead of issuing a writ. (12CV592110). Stephens said that it was beyond his Court to settle it.
and given that lenders are not mandated by law or practice to offered homeowners a choice of judicial and non-judicial mortgages. the burden of proof should shift to the Plaintiffs – those seeking State relief. once done. and the Court’s power to use the Sheriff and state resources to enforce an eviction while having nowhere prove standing. etc. a) Standing goes to the heart of all judicial proceedings. 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. and access to state resources. State and case law citations will be provided in later sections.‖ no one anticipated the extensive power of sale abuse. notary abuse. that is all too common among mortgage lenders.18. but here the Defendant – home-owner has challenged the Plaintiff’s claim of standing. Given that the legislature has allowed non-judicial foreclosure as the norm in the state. e) That might be acceptable in some instances. c) To allow a person to access Court relief and State sanction and power. robo-signing. d) The Plaintiff here seeks the Court’s sanction of a disputed foreclosure action. the Defendanthomeowner will be denied due process if Summary Judgment is granted. 19. sanction. b) A person seeking the Court’s relief must prove standing to seek such relief. securitization of mortgage loans. I beg the Court’s indulgence to explain in plain writing. . against another party. f) While having the Defendant -Homeowner to begin a formal legal process to force the Plaintiff to prove standing is unduly burdensome enough. without the moving party proving standing is a classic denial of due process.
than according to the rules of the common law. shall be otherwise re-examined in any Court of the United States. JURISDICTION 20. o) On the other-hand. the Defendant would be irrevocably harmed should he be unlawfully disposed of his home and forced to move. 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." . and no fact tried by a jury. (EXHIBIT 3).‖ i) Increasingly the question is or needs to be. (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. The action before that court qualifies as a ―case of controversy. Seventh Amendment to the Constitution States: "In Suits at common law. the industry has. where the value in controversy shall exceed twenty dollars. etc. so the Plaintiff will not be harmed by this delay for justice.EverBank has been fined by the Federal Government for their robo signing. and hence has lost the presumption of good faith and fair dealing. the right of trial by jury shall be preserved. securitization of mortgage loans. n) The Defendant is already paying rent into the Court. notary abuse. 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.
5 and 6) VERIFIED COMPLAINT 24. Section 44-14162.NOT A TENANT 21. 12CV5921-10 .C. O. LLP.G. 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. or any entity has the ability or authority to act in this matter. 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.A. address and telephone number of the individual who has authority to negotiate a loan modification. Plaintiff violated Georgia’s Foreclosure Law which requires all foreclosure notices to include the name. 23. valid foreclosure nor a valid recording of any deed of sale from any valid entity or legal person.2 (See Exhibit #4. Defendants disputed that he was a ―tenant at suffrage‖ since there has been no valid sale.
§ 44-14-162 (a-c) by commencing foreclosing on 5382-4 Ridgemere Court Stone Mountain. The Plaintiff. listed the Plaintiff’s loan pool number ―pool number: 606439‖ indicating that Plaintiff’s loan was securitized into a Mortgage Back Security (MBS) or some sort of pool of loans turned into a Extensive research has located the Plaintiff’s loan in a Fannie Mae REMIC (Pool: 606439) CUSPID number (31388JV85 ) (See Exhibit 3) Definitions: a. The complaint detailed allegations of WRONGFUL FORECLOSURE and constituted a legitimate dispute regarding ownership and possession rights which are in contest. After the Defendant failed to validate their standing as requested by the Plaintiff.25.(Now Cyril Mungal) alleges that the Defendant-(Now EverBank) is not the ―secured creditor‖ and has violated O. The assignment to EverBank. Mortgage-backed securities are broken into different classes called tranches. 2011. Plaintiff became suspicious and began his own research. which direct principal and interest to . III. 2012. KEY EXCERPTS FROM THE COMPLAINT: (See Exhibit #7 for entire complaint) I.G. IV.C.A. on November 1st. GA 30083 II. 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. 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. then again on March 6th.
An extensive check of the DeKalb County Records for subject property shows that there is no recording of a transfer or assignment of Plaintiff’s note or security deed from Fannie Mae or the authorized trustee to EverBank. and offered nothing to show that he controlled it. § 44-14-64 (a-c) only the documented secured creditor/holder in due course can foreclose on subject property. VII. United States District Court Judge Amy Totenburg in Morgan vs. VI. Fanny Mae works closely with dealers and investors to customize REMIC structures to meet the needs of investors. § 44-14-162(b) (emphasis added). §§ 44-14-162.‖ O. § 44-14-162.2(a) (emphasis added).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. to exercise a power of sale.S. security deed.‖ O.S. but makes clear the Georgia Supreme Court view on this matter: ―Georgia law authorizes the secured creditor. The number consists of nine characters (including letters and numbers) that uniquely identify a company or issuer and the type of security.G.G.C. and U. not only concurs.C. or to explain why it was not . ―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. 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. According to O. A.G. See O. ―Notice of the initiation of proceedings to exercise a power of sale in a mortgage. Ocwen Loan Servicing LLC. V. b. Fanny Mae offers a variety of REMIC products.C. A CUSIP number identifies most securities.sec.A. The CUSIP system—owned by the American Bankers Association and operated by Standard & Poor’s—facilitates the clearing and settlement process of securities. government and municipal bonds.G. including: stocks of all registered U.A.htm) CUSIP stands for Committee on Uniform Securities Identification Procedures. A similar system is used to identify foreign securities (CUSIP International Numbering System).gov/answers/cusip. In addition.predetermined groups of investors.C. and Canadian companies.A. the holder of the obligation. which he failed to produce when called on. CUSIP Number: (from the SEC Website: http://www.
1994) (foreclosure was null and void where the entity foreclosing did not have an actual assignment of the note and security deed). Trust agreements for pools issued before that date do not allow for this flexibility.‖). 1997). Cummings v. X. Hence his mortgage could not have been lawfully removed from the trust. Since it wasn’t until 2009 that Fannie Mae changed the Pooling and Service Agreement or ― Master Trust Agreement‖ to allow for mortgage transfers out of the trust. Ga. IX. 438 S. EverBank has refused to establish that it is the authorized trustee. 580 S. see also Bowen. therefore the lawful secured creditor is the Fannie Mae backed REMIC Trust. XII.forthcoming at the trial?‖ Weems v. Weston v. Coker. and have instead wrongfully foreclosed on Plaintiff’s property. Plaintiff contends that only proper and formal . Aug. Ga. and/or if they have been duly authorized by Fannie Mae backed REMIC trust to foreclose on subject property. Early Workout gives servicers the tool necessary to address problems loans as early as necessary. 173 B.D. 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. Towson. Ga. 11 B. Anderson. Moister. aff’d. regardless of MBS pool date‖. at *6 (M. VIII. 963 (Bankr. In December 2008 Fannie Mae issued this directive: a.R. 749 (1883). Further research calls into question the initial assignment of the Plaintiff’s mortgage to from Regions to EverBank in August 2008. Since they have refuse to provide the information. but as described above.2d at 578. 5:04-CV-416.D. 15 (Bankr. 112 F. N.E. 1981). 2009. No. Plaintiff’s pool loan number clearly identifies it as having been placed in a pool prior to January 1. 2009. 70 Ga. This applies only to loans backing securities issued on or after January1. 959.3d 1172 (11th Cir. 746.R.D. ―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. XI.E. cited by Truitt v. Boaz. 2006 WL 2246206.N. (See Exhibit 4). 4.2d at 122.
Respectfully Cyril Mungal . Plaintiff respectfully requests that this Court enter a judgment against the Defendant as follows: c.000. foreclosure on Plaintiffs home (subject property) be set aside. 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. d. 2) That any further dispossessory proceedings be stayed until DefendantMungal’s Complaint which has been removed to Federal District Court is resolved.00 e. XIV. f. That Plaintiff be granted compensatory damages against the Defendant EVERBANK. That the March 6th. That Plaintiff is granted such other and further relief as the Court deems just and proper. 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. WHEREFORE.discovery will ferret out the securitization maze to further reveal that EverBank has no standing to either collect payments or foreclose on Plaintiff’s mortgage. in the amount of $200.
com ._________________________________ Cyril Mungal Pro Se Litigant 5384 Ridgemere Court Stone Mountain. GA 30083 678-474-7475 Cyril_mungal@hotmail.
Duke Building Suite 100 Atlanta. LLP . by serving the same by handing a copy of said Pleadings .Answer & Cross-Complaint by U. Mail to: Shapiro & Swertfeger. S. GA 30341 . LLP 2872 Woodcock Boulevard.CERTIFICATE OF SERVICE I hereby certify that I have this day served Plaintiffs attorney Shapiro & Swertfeger.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.