IN THE SUPERIOR COURT OF DEKALB COUNTY

STATE OF GEORGIA

EVERBANK ) CASE NO .12cv7511-2

Plaintiff, )vs. ) )CYRIL MUNGAL )

(Pro se) ) )

Defendant )

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.

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 EverBank’s 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 EverBank’s claim to be the

“secured creditor” and presenting evidence that Fannie Mae

was in fact the closest thing to a “secured creditor”.

(12CV5921-10). 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 Defendant’s

dispossessory answer and counter claim.

15. After Defendant filed the notice of appeal of the Magistrate

Court Judge’s ruling, the Plaintiff’s have exercised their

constitutional right of removal and on July 3rd,2012 removed

the Defendant Mungal’s case to Federal Court claiming

Diversity.

ARGUMENTS

Denial of Due Process

16. The Magistrate Judge Corneill A. Stephens erred in ignoring

Defendant’s 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 Defendant-

homeowner will be denied due process if Summary Judgment

is granted.

19. I beg the Court’s 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 Court’s 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 Court’s sanction of a disputed

foreclosure action, and the Court’s 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 Plaintiff’s

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 Georgia’s 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 44-14-162.2

(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 on November 1st,

2011, then again on March 6th, 2012.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.

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 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. 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 system—owned by the American Bankers Association and operated by Standard & Poor’s—facilitates 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 Plaintiff’s note or security deed from Fannie Mae or the authorized trustee to EverBank.

VI. 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).

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), aff’d, 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

Plaintiff’s mortgage to from Regions to EverBank in August 2008.

IX. 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. 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).

X. Plaintiff’s 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 Plaintiff’s 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 Plaintiff’s

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

Defendant- Mungal’s Complaint which has been removed to

Federal District Court is resolved.

Respectfully

Cyril Mungal

_________________________________ Cyril Mungal Pro Se Litigant

5384 Ridgemere CourtStone 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