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CAUSE NO. 21 03044
GINGER BLAIR IN THE DISTRICT COURT OF
Plaintiff
MONTGOMERY COUNTY, TEXAS
AMIRALI VIRANI
Defendant JUDICIAL DISTRICT COURT
DEFENDANT, AMIRALI VIRANI
TRADITIONAL MOTION FOR SUMMARY JUDGMENT
COMES NOW, Defendant, AMIRALI VIRANI (hereinafter sometimes referred to as
Defendant”), and files this TRADITIONAL MOTION FOR SUMMARY JUDGMENT, and
in support thereof states the following:
FACTUAL STATEMENT AND SUMMARY OF THE ARGUMENT
In late 2019, Plaintiff wanted a certain sum of money Due to her credit situation, she
could not access traditional credit institutions. She was referred to Defendant by a friend of
Plaintiff. (See attached Exhibit 1 Affidavit of Amirali Virani Paragraph 1)
In order to get the funding she desired, Plaintiff contractually her property at 2
Edgewood Forest Court, Spring, Texas 77381 to Defendant for its original loan mortgage
amount, subject to Defendant paying the remaining balance. To do this, Defendant procured a
mortgage (not federally backed) by using the executed sales contract prior to closing as is
normally done (A person cannot close on a property without lining up funding in advance) The
Plaintiff knew this as she signed a Third Party Financing Agreement (See attached Exhibit 1
Affidavit of Amirali Virani sub exhibit 2) Defendant and Plaintiff closed on the property with
Defendant paying Plaintiff the funding she sought and Defendant paying off Plaintiffs
original mortgage balance (at a negotiated discount) Plaintiff received, acknowledged and
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executed all closing documents and buyer and seller statements. (See attached Exhibit 1 -
Affidavit of Amirali Virani - Paragraphs | - 7)
3. As part of this contract for sale, Plaintiff agreed to then purchase the property back
from Defendant for the then market value in June of 2020. Plaintiff was to then begin renting the
property from Defendant for 6 months. Defendant paid Plaintiff the majority of the equity, the
difference between the Plaintiff's original mortgage amount and the mortgage balance.
Defendant was able to negotiate a lesser payoff of the mortgage balance. Up to that point in time
in June of 2020, Defendant had only received the discounted payoff of the original mortgage of
Plaintiff as profit. Plaintiff inconsistently and incompletely paid the rental payments that were
due in the six (6) month period between closing on the sale and closing on the resale. (See
attached Exhibit 1 - Affidavit of Amirali Virani - Paragraphs | - 7)
4. Defendant’s remaining profit was to be from the resale of the property in June of 2020
per the original agreement at the agreed price which was market value at the time of the original
sale to Defendant. The Plaintiff was unable to get conventional financing for the repurchase.
Therefore, the repurchase financing was done by a traditional wrap around note which had the
Defendant financing the resale personally (a private loan not federally backed). This was for the
same reason she could not refinance in the first place to get her equity, specifically her lack of
credit worthiness. The closing was a private closing as no mortgage company was involved and
no title company was necessary. Plaintiff could not come up with all the funds necessary to close
on the repurchase. Defendant then allowed the Plaintiffto delay payment of closing costs in the
amount of $4,800 by doing an Amendment to the Contract and a Note to support the late
payment of those funds. This note for $4,800 was on a timed schedule of payments. Plaintiff
could not afford the $5,600 fee of the document processing company, Texas Pride. To make the
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closing go through, the Defendant paid this fee at closing. Plaintiff received, acknowledged, and
executed all closing documents and buyer and seller statements. (See attached Exhibit 1 -
Affidavit of Amirali Virani - Paragraph 7 - 14)
5. The Defendant’s financing of the original purchase transaction with CMG did have a
“due on sale” clause but it has not been invoked by CMG nor is the CMG note not in good
standing. The wrap note is not a violation of this clause and Defendant now has ownership of
the property. So, there is no present transfer. Plaintiff executed an agreement to this type of
financing and not notifying the Defendant’s lender CMG. Moreover, the Plaintiff does not have
standing to raise this issue as a matter of law as they are not in privity with the contract between
Defendant and CMG. (See attached Exhibit | - Affidavit of Amirali Virani - Paragraph 14)
6. The Plaintiff failed to make any of the required payments under the $4,800 note and
the main wrap note. Despite trying to work with Plaintiff, Defendant could not get Plaintiff to
make payments (now going on one (1) year). Defendant had his attorney send a notice of default
and acceleration of the wrap round note and foreclosed on it. Defendant bought it at auction and
the trustee transferred title. Defendant filed for eviction in Justice of the Peace Court. The
Plaintiff filed this action attempting to muddy the very clear waters, including but not limited to
inaccurately claiming the CARES Act moratorium applies. The Justice of the Peace abated the
eviction until this litigation is resolved. (See attached Exhibit 1 - Affidavit of Amirali Virani -
Paragraph 15 - 19)
7. It is Defendant’s understanding that Plaintiff counsel attempted to obtain a TRO
without notice to Defendant. Despite Plaintiff counsel having obtained citation, for some reason
he is not serving Defendant (maybe for the Plaintiff to continue to live in the house without
paying anything). (See Court’s file which is incorporated herein by reference) Thus, Defendant
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has voluntarily entered an appearance and file this Motion for Summary Judgement as time is of
the essence and all issues are not able to be disputed factually based on all the signed
acknowledgments and disclosures of the Plaintiff and are simply not actionable as a matter of
law.
8. It is important to note that this is not a suit for title, but merely a question as to the
foreclosure which is not title, but simply the right to immediate possession which is within the
sole jurisdiction of the JP Court. The Plaintiff
has not made any actionable factual allegation.
IL.
MOTION FOR SUMMARY JUDGMENT STANDARDS
9. Defendant realizes the court knows the standards for Summary Judgment under Texas
Law. However, in the interest of the completeness of this Motion these standards are briefly
provided below.
A. Standards for Traditional Summary Judgment (Texas Rule of Civil Procedure
166a)
10. Summary Judgment is appropriate when the movant is able to produce evidence to
disprove, as a matter of law, at least one element of each of the Plaintiffs’ pled causes of action.
See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In deciding
whether there is a disputed material fact issue precluding summary judgment, evidence favorable
to the non-movant will be taken as true and every reasonable inference must be indulged in favor
of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co.
690 S.W.2d 546, 548-49 (Tex. 1985).
lll.
SUMMARY JUDGMENT EVIDENCE
11. This motion will set forth the arguments why Defendant Amirali Virani’s Traditional
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Motion for Summary Judgment should be granted. The evidence includes the following exhibits
which are incorporated herein by reference:
A Exhibit 1 — Affidavit of Amirali Virani with Sub-Exhibits 1 — 58 including:
e affidavits of business records for two custodians for the two closing file
and
e affidavits of mailing and posting relating to the foreclosure
Iv.
ARGUMENTS AND AUTHORITIES
SUPPORTING TRADITIONAL MOTION FOR SUMMARY JUDGMENT
A. Plaintiff's Allegations:
12. The plaintiffs only legal allegation is a vague reference to “Illegal Foreclosure”
without pointing to any legal basis for same.
13. In the Factual Background, Plaintiff claims:
e For the first transfer of the property from Plaintiff to Defendant
1 Before the original transfer of the property from Plaintiff to Defendant, Defendant
“had already gotten a loan”.
Defendant ‘s attorney “prepared” the deed.
Defendant paid the balance of Plaintiff's original mortgage “at a discount
amount”.
e For the transfer of the property back to Plaintiff from Defendant
4 Defendant attempted “an illegal and unauthorized wrap-around note” because the
note is alleged to violate Defendant’s contract with CMG Mortgage due to a “due
on sale” clause.
Defendant instructed his attorney who is acting as a trustee to not inform CMG.
Plaintiff signed a deed of trust to Defendant’s attorney as trustee and prepared by
Defendant’s attorney for the repurchase amount in the wrap around note.
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Defendant’s attorney drafted a deed of trust for the $4800 for which Defendant
insisted Plaintiff
was short in closing costs.
The closing for the repurchase did not take place in a formal sit-down setting with
all parties present at the same time.
There has been “confusion” concerning the actual numbers regarding interest,
fees and costs.
10. Plaintiff has tried on numerous occasions to get clarity.
ll. The purpose was to scam Plaintiff out of her house.
12. After stalling Plaintiff for 2 months, Defendant decided to accelerate the note.
13. Defendant allegedly posted and foreclosed on the property.
14. When asked for a payoff, Defendant sent a payoff gouge of $316,000 riddled with
illegal and unconscionable fees and expenses.
15. Defendant allegedly posted Plaintiffs property for foreclosure on January 5,
2021.
16. As recently as January 13, 2021, Defendant posted a 3 day notice to vacate the
property. This is very harsh and unreasonable.
B._Defendant’s Response:
Plaintiff Received What She Agreed To In Writing And Has Paid Nothing Since
Repurchasing The Property In June 2020:
14. The plaintiff needed the equity from her home in an emergency and could not get it
through conventional financing. She, in a signed contract, sold her property to the Defendant
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 2 & sub exhibit 3) and received
the amount of equity that she agreed to in a signed closing statement. (See attached Exhibit 1 -
Affidavit of Amirali Virani — Paragraph 7 & sub exhibit 17)
15. The Plaintiff agreed in a signed a contract to repurchase the property for $260,000.
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 3 & sub exhibit 6)
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16. The Plaintiff could not obtain conventional financing and would have lost the
property if Defendant had not offered to privately finance the repurchase transaction with a wrap
around note. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraphs 8-10 & sub
exhibit 28)
18. Plaintiff could not pay all the closing costs (despite receiving $80,000 from her trust
fund in (See attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 23). Defendant
delayed Plaintiff from paying the costs she could not pay by allowing her to execute a $4,800
note to be paid on a schedule up to 30 days after closing. (See attached Exhibit | - Affidavit of
Amirali Virani — sub exhibit 29) Plaintiff could not pay the fees ($5,600) of the company that
prepared the closing documents for the repurchase, Texas Pride. Defendant volunteered to pay
this to make the transaction possible. (See attached Exhibit 1 - Affidavit of Amirali Virani —
Paragraph 13 sub exhibit 30 & 31)
19. Plaintiff failed to make consistent and complete rent payments for the time period
between Defendant purchasing the property and the Plaintiff repurchasing the property. (See
attached Exhibit | - Affidavit of Amirali Virani — Paragraph 15 sub exhibit 45)
20. After the repurchase, Plaintiff failed to make a single payment from July 2020 to the
present. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 15 & 16 sub exhibit
32) She has been living payment free in the property.
Before Original Transfer Of The Property From Plaintiff To Defendant, Defendant “Had
Already Gotten A Loan”.
21. The Plaintiff agreed in writing to the Defendant obtaining third party financing prior to
the closing as documented in attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 3 sub
exhibit 2) and set out below:
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THIRD PARTY FINANCING ADDENDUM
TO CONTRACT CONCERNING THE PROPERTY AT
2 Edgewood Forest Ct Soring
(Street Address and City)
1. TYPE OF FINANCING AND DUTY TO APPLY AND OBTAIN APPROVAL: Buyer sha
apply promptly for all financing described below and make every reasonable effort to obtain
approval for the financing, including but not limited to furnishing all information and
documents required by Buyer's lender. (Check applicable boxes):
|X] ACCONVENTIONAL FINANCING:
[X]_(1) A first mortgage loan in the principal amount of $ 220,000.00
financed PMI premium, due in full in 30 year(s), with interest not to exceed
per annum for the first 4 year(s) of the loan with Origination Charges as shown on
Buyers Loan Estimate for the loan not to exceed % of the loan.
5. AUTHORIZATION TO RELEASE INFORMATION:
A. Buyer authorizes Buyer's lender to furnish to Seller or Buyer or their representatives
information relating to the status of the approval for the financing.
B. Seller and Buyer authorize Buyer's lender, title company, and escrow agent to disclose
and furnish a copy of the closing disclosures and settlement statements provided in relation
to the closing of this sale to the parties' respective brokers and sales agents provided under
Broker Information.
Electronically Signed SJ 12/09/2019 10:11 AM CST
Buyer AMIRALI VIRANI
Electronically Signed y 12/09/2019 10 51 AM CST
Seller GINGER BLAIR
Moreover, it is axiomatic that a buyer would have to get financing before the transfer if the buyer
is to get a transfer of the property. Property does not transfer for “free”.
Defendant’s Attorney “Prepared” The Deed:
22. A deed transferring title is normally prepared by an attorney. Plaintiff
was not funding
the closing, and as a result, was not paying attorneys to prepare the documents. Plaintiff agreed
in writing to the Defendant’s attorney’s role and that she could have her own counsel. (See
attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 34) Moreover, Plaintiff does not
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point out anything that is objectionable in the “deed” prepared by the Defendant’s attorney. (See
Deed of Trust attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 35)
Defendant Paid The Balance Of Plaintiff's Original Mortgage “At A Discount Amount”.
23. The Defendant did negotiate a discount on the payoff
of the Plaintiff's original mortgage
note. However, this was a transaction between the Defendant and the note holder, not the
Plaintiff. The Plaintiff has no standing to complain as Defendant’s ability to get a favorable
agreement (likely due to Plaintiff's payment history and the note holder wanting off the note).
Defendant’s obligation to Plaintiff in the purchase agreement was to pay off her original
mortgage obligation. It is his benefit and his alone if he gets favorable terms. She cannot be
heard to complain about Defendant’s legal right to negotiate with third parties. Plaintiff received
the greed upon equity from her home for which she contracted which was the sales price minus
the amount she owed on her mortgage. The fact that the Plaintiffs original lender was willing to
negotiate the balance of the mortgage is not only ordinary business practice but is more of a
testament to the problems that mortgagee had with the Plaintiff. (See attached Exhibit 1 -
Affidavit of Amirali Virani — Paragraph 7) The reason this is even an issue is the Plaintiff has
had an irreparable credit history that prevented her from getting conventional financing.
[Grouped]
Defendant Attempted “An Illegal And Unauthorized Wrap-Around Note” Because The
Note Is Alleged To Violate Defendant’s Contract With CMG Mortgage Due To A “Due On
Sale” Clause.
Defendant Instructed His Attorney Who Is Acting As A Trustee To Not Inform CMG.
Plaintiff Signed A Deed Of Trust To Defendant’s Attorney As Trustee And Prepared By
Defendant’s Attorney For The Repurchase Amount In The Wrap Around Note.
24. The Note executed by Plaintiff and Defendant is marked and attached Exhibit 1
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Affidavit of Amirali Virani — sub exhibit 28). The Texas Supreme Court has affirmed the validity
of a wrap around note and explained exactly how it works:
“Under wraparound financing, the purchaser makes an installment note which includes, or
"wraps around," the principal balance of an underlying indebtedness. The purchaser
expressly does not assume responsibility for the underlying indebtedness, and he accepts title
subject to the lien or liens which secure payment of that underlying indebtedness.”
James M. Summers, Trustee and English Village Apartments, Ltd. v. Consolidated Capital
Special Trust, vs. Consolidated Capital Special Trust, 783 S.W.2d 580 at 580 (Tex. 1989).
This is exactly the contract/note into which the Plaintiff and Defendant entered.
25. The original note that Defendant obtained financing under from CMG did have a due on
sale clause, which does not prohibit resale of the property, but merely states that the mortgage
company “may require” the acceleration of the note if done without consent. It is not an absolute
and in fact has not happened:
“IT IS UNDERSTOOD and we are aware that the Deed of Trust dated January 3, 2020
executed by Amirali Virani to Thomas E. Black, Jr., trustee, recorded in County Clerk
File No. 2020001147 of the real property records of Montgomery County, Texas,
includes an acceleration clause where by the Lender may require that the entire unpaid
balance of the note becomes immediately due and payable if property is sold without
written consent of the lienholder. A copy of said Deed of Trust is attached herewith for
reference as Exhibit "A". [Emphasis Added]
26. Moreover, the courts have ruled that any obligation in a deed of trust between the original
borrower and a mortgage company is between those two alone. A later third-party purchaser
does not have standing to complain of any perceived formality that has not been met if the
formality would only make the transaction voidable but not void.
“Under these rules, a mortgagor who is not a party to a deed-of-trust assignment
must allege a ground that would render the assignment void to have standing to the
challenge the assignment. See Melendez v. Citimortgage, Inc., No. 03-14-0029-CV, 2015
Tex. App. LEXIS 10260, at *15-17 n.3 (Tex. App.—Austin Oct. 2, 2015, no pet.) (mem.
op.) (relying upon cases in which non-party mortgagor did not have standing to challenge
assignment of mortgage because grounds raised would have rendered assignment only
voidable, not void, and noting that alleging ground that would render assignment void is
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"only circumstance in which mortgagors who are not a party to a deed-of-trust
assignment have standing to challenge that assignment").”
Standiford v. Citimortgage, Inc., 2016 LEXIS 11269; 2015 WL 6831578 (Tex. App — Austin
2015 - petition denied).This due on sale provision clearly does not make it void as the original
note holder “may” invoke the clause, not “shall”. Finally, Plaintiff has no standing to raise this as
she has no privity to the CMG Deed of Trust.
27. As to the Defendant’s attorney not informing CMG, this is an absolute
misconstruction of the agreement signed by the Plaintiff. This provision merely states that the
Plaintiff and Defendant “have determined not to seek the written consent” of lienholder to such
sale and have told the Defendant’s attorney not to do so and release her:
FUTHERMORE, all of the undersigned have determined not to seek the written
consent of lienholder to such sale and we have DIRECTED Umatiya Law Firm,
PLLC NOT to notify _lienholder_of_this transaction _and_herewith release
DIRECTED Umatiya Law Firm, PLLC of any responsibility if lienholder determines
that this transaction constitutes default under the terms of their Deed of Trust.
FURTHERMORE, we acknowledge that we have been advised by Umatiya Law Firm,
PLLC to CONSULT AN ATTORNEY BEFORE SIGNING, if we do not understand the
effects of any part of this agreement.
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 14 sub exhibit 44)
28. As to the Plaintiffs agreement to the nondisclosure of the repurchase and the statement
that Defendant’s attorney receiving the Deed of Trust as trustee and being the one who prepared
it, Plaintiff was not paying for any document preparation (as she could not even come up with all
closing costs) and, again, Plaintiff signed a disclosure of the role of the Defendant’s attorney
which also advised she could get her own counsel:
“3, Attorney represents only Lender and no other party involved in this transaction,
although Attorney's legal fees may be paid by Borrower.
5. Borrower has the right to be represented by its own attorney and to have its attorney
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review the Loan documents (including the deed, if there is one) and closing documents and
be present at the closing of the Loan.”
(See attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 34)
Defendant’s Attorney Drafted A Deed Of Trust For The $4800 For Which Defendant
Insisted Plaintiff Was Short In Closing Costs.
29. Plaintiff
did not have the money for the full closing costs. She signed a Note to this effect
at closing. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 13 sub exhibit 29)
She agreed with this arrangement in writing and then failed to comply by never paying the note.
She also was not paying for the fees for document preparation. Again, she signed the above
referenced disclosure as to the Defendant’s attorney’s role and that Plaintiff could have her own
counsel. (See attached Exhibit | - Affidavit of Amirali Virani — sub exhibit 34)
The Closing For The Repurchase Did Not Take Place In A Formal Sit-Down Setting With
All Parties Present At The Same Time.
30. Closings are not a formal proceeding and can be done at a title company or in an office.
It is normal for only one side to attend at a time though it can occur with both sides there if so
desired. There is no legal requirement that can be found to support the concept that the closing
has to have all sides present.
[Grouped]
There Has Been “Confusion” Concerning The Actual Numbers Regarding Interest, Fees
And Costs.
Plaintiff Has Tried On Numerous Occasions To Get Clarity.
31. Confusion is not an element ofa cause of action. Further, it is irrelevant when all your
questions regarding the interest, fees and costs were addressed in two conference/video calls pre-
closing and on post-closing. (See attached Exhibit | - Affidavit of Amirali Virani — Paragraph 12
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sub exhibit 24, 25, 26) This is especially so when Plaintiff signs off on the closing balance sheet
as to the numbers therein. Plaintiff has a legal obligation to read the legal documents that she
signs.
The Purpose Was To Scam Plaintiff Out Of Her House.
32. A mere statement by Plaintiff that the purpose was to “scam” her is simply puffing when
the transaction trail on both transactions are viewed in the light of day as laid out above. The
“scam” is Plaintiff sitting on a trust fund and not paying all her rent and paying what she paid
untimely, not fully funding her share of the closing costs, then not paying anything to live in the
property since the closing one year ago and then trying to get an ex-party TRO.
After Stalling Plaintiff For 2 Months, Defendant Decided To Accelerate The Note.
33. The Defendant did not stall for two months. The Plaintiff
was the one stalling, while not
paying anything after closing for August, October, November of 2020. She even sent a
threatening email on November 24, 2020:
“Amir
I have contacted my attorney regarding the acceleration of this loan . She is out of
town until next Monday .
We will be counter suing under the Usury laws in the state of Texas.
I will including Texas Pride and Covey in the case. I believe this entire transaction
has been misrepresented to me.
I hope the holidays find you happy and heathy.
Ging”
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 17 sub exhibit 46) This email
from Plaintiff showed she never intended to fulfill her obligations.
34. For all of these reasons, the notice of default was mailed out in November. (See attached
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Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 47 &48) This was after
attempts were made to get Plaintiff to pay. The Notice of Foreclosure went out on December 15,
2020. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 49) After
Plaintiff ignored the situation for months and threatened a suit that did not come, Plaintiff
acknowledged in an email that she in fact owned the debt and wanted her family to pay the
amount due on January 2, 2021 with the foreclosure sale being the January 5, 2021:
“Could you please send me the foreclosure letter from your attorney I am desperately
trying to get family help to save my home. They want the letter from the attorney to try to
work this out for me”
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 52)
Defendant Allegedly Posted And Foreclosed On The Property.
35. There is no “allegedly” posted and foreclosed property. Defendant’s Attorney actually
did send a Notice of Default and Acceleration to the Plaintiff on November 4, 2020 with
documentation of mailing:
“Dear Ms. Blair:
This letter is to give you notice of default under the referenced loan documents.
This default consists of the following:
Loan AV2001
September 15, 2020 Payment $ 2,751.00
September 15, 2020 Payment Late Fee $ 137.55
October 15, 2020 Payment $ 2,751.00
October 15, 2020 Payment Late Fee $ 137.55
Loan AV2002
September 19, 2020 Payment $ 4,383.80
Insurance on Property Purchased by Lien Holder $1,572.00
Total Outstanding Balance: $ 11,732.90
You are notified that if the default is not cured within twenty days from the date of
posting of this letter, the mortgagee intends to enforce its rights under the loan
documents. Specifically, the mortgagee intends to accelerate the maturity of the
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note and demand payment for the full unpaid principal balance, together with
accrued but unpaid interest and all fees and expenses, as allowed by law. If the
amount due is not timely paid, the mortgagee intends to foreclose the lien under
the loan documents.”
(See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 47 & 48)
Plaintiff ignored this letter requesting she come current with $11,732.90. She also ignored the
section that said in 20 days, the note would be accelerated with all interest and penalties.
When Asked For A Payoff, Defendant Sent A Payoff Gouge Of $316,000 Riddled With
Illegal And Unconscionable Fees And Expenses.
36. Defendant did not “gouge” the Plaintiff. The Defendant did send on December 15, 2020
the promised Notice of Trustee’s Sale for foreclosure with a demand for the accelerated amount
of $239,825 principle and $7,754.36 interest through December 15, 2020 with additional interest
of $64.62 per day going forward. (See attached Affidavit of mailing and letter - Exhibit 49). Any
later amount Plaintiff is referring to would be with all additional penalties, interest, late fees,
taxes and attorney fees at that time. This is as opposed to the foreclosure demand of December
15, 2020, referenced above.
Defendant Allegedly Posted Plaintiff’s Property For Foreclosure On January 5, 2021.
37. Again, there was no “allegedly” posted property for foreclosure. Defendant “actually” did
post the property for foreclosure for a date of January 5, 2021 which is documented by the
Affidavit of Posting (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub
exhibit 50) and photograph of the posting (See attached Exhibit | - Affidavit of Amirali Virani —
Paragraph 18 sub exhibit 51) and Defendant’s email to Plaintiff advising of the date, time and
location of the foreclosure sale (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph
18 sub exhibit 52).
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As Recently As January 13, 2021, Defendant Posted A 3 Day Notice To Vacate The
Property. This Is Very Harsh And Unreasonable.
38. The point of a foreclosure is to gain possession of the property. The Texas Property
Code allows for eviction by giving a three day notice to vacate. Yes, it is unpleasant to all
concemed, but is to be expected when Plaintiff does not pay anything since her closing to
repurchase and ignores legal correspondence advising her of the penalties of same.
39. It is important to note that this suit is not to ascertain title. It is merely a vague
allegation of wrongful foreclosure which has been established to be untrue as a matter of law by
the undisputed summary judgement evidence.
40. The JP court and on appeal, the county court have jurisdiction of the immediate right
to possession based on prima facia evidence of a superior right to possession:
“Justice court and a county court at law had subject-matter jurisdiction to grant
pos: ion of a borrower’s residential property that a bank purchased at a non-
judicial foreclosure sale to the bank in its forcible-detainer action because the landlord-
tenant relationship created by the foreclosure of the deed of trust executed by the
borrower provided an independent basis for determining pos: ion without first
adjudicating title. The deed of trust expressly provided that, in the event of a non-
judicial foreclosure sale, the borrower would become a tenant at sufferance if she
did not surrender possession of the property, and the bank demonstrated that its claim
of right to immediate poss sion was based on documents indicating its purchase of the
property at a foreclosure sale, that the bank gave the borrower notice to vacate the
property, and that the borrower refused to vacate the property.”
Trotter v. Bank of N.Y. Mellon, 2013 Tex. App. LEXIS 5703 (Tex. App. Houston 14th Dist. May
9, 2013). [emphasis added]
The Deed of Trust for this wrap note had this very language”
“E.2. If any of the Property is sold under this deed of trust, Grantor must immediately
surrender possession to the purchaser. If Grantor does not, Grantor will be a tenant at
sufferance of the purchaser, subject to an action for forcible detainer.”
Under the Property Code Sec. 24.002. Forcible Detainer.:
(a) A person who refuses to surrender possession of real property on demand commits a
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forcible detainer if the person:
(J) is a tenant or a subtenant wilfully and without force holding over after the
termination of the tenant’s right of possession;
(2) is a tenant at will or by sufferance, including an occupant at the time
of foreclosure of a lien superior to the tenant’s lease; or
(3) is a tenant of a person who acquired possession by forcible entry.
(b) The demand for possession must be made in writing by a person entitled to
possession of the property and must comply with the requirements for notice to vacate
under Section 24.005.
Defendant met the requirements of Property Code Sec 24.005:
“(a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord
must give a tenant who defaults or holds over beyond the end of the rental term or renewal
period at least three days’ written notice to vacate the premises before the landlord files a
forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a
written lease or agreement.
(b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at
least three days’ written notice to vacate before the landlord files a forcible detainer suit unless
the parties have contracted for a shorter or longer notice period in a written lease or agreement.
(f) Except as provided by Subsection (f-1), the notice to vacate shall be given in person or
by mail at the premises in question. Notice in person may be by personal delivery to the tenant or
any person residing at the premises who is 16 years of age or older or personal delivery to the
premises and affixing the notice to the inside of the main entry door. Notice by mail may be by
regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in
question.
(f-1) As an alternative to the procedures of Subsection (f), a landlord may deliver the
notice to vacate by securely affixing to the outside of the main entry door....”
Defendant gave three days notice to vacate and posted it on the front door before he filed for
eviction.
41. Therefore, the Court should GRANT Defendant Amirali Virani’s TRADITIONAL
Motion for Summary Judgment, as a matter of law.
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Vv.
PRAYER
WHEREFORE PREMISES CONSIDERED, Defendant, Amirali Virani, asks the
Court to grant his TRADITIONAL MOTION FOR SUMMARY JUDGMENT requested herein
and to DISMISS all Plaintiff's claims against this defendant, and for such other and further relief
to which Defendant, may show himself justly entitled.
Respectfully submitted,
FAHL & DONALDSON, PLLC
/s/Glenn J. Fahl
GLENN J. FAHL
gfahl@fahldonaldson.com
State Bar No. 06773080
801 Louisiana Street, Suite 400
Houston, Texas 77002
713/627-7800
713/627-7804 Facsimile
ATTORNEYS FOR DEFENDANT,
AMIRALI VIRANI
CERTIFICATE OF SERVICE
This shall certify that the foregoing instrument has been served pursuant to Texas Rule of
Civil Procedure 21a via hand delivery, mail, commercial delivery service, fax, email, or
electronically by e-filing service, and/or fax by the e-file service as follows:
Via e-file service email and/or
via facsimile: (713) 812-1418
Samuel L. Milledge
The Milledge Law Firm
2500 East T.C. Jester Blvd., Suite 510
Houston, Texas 77008
Attorney
for Plaintiff
06/22/2021 /s/Glenn J. Fahl
DATE Glenn J. Fahl
Page 18 of 18
CAUSE NO. 21-03-03044
GINGER BLAIR IN THE DISTRICT COURT OF
Plaintiff
VS.
MONTGOMERY COUNTY, TEXAS
AMIRALI VIRANI
Defendant 284" JUDICIAL DISTRICT COURT
AFFIDAVIT OF AMIRALI VIRANI
'
STATE OF TEXAS
'
COUNTY OF HARRIS
BEFORE ME, the undersigned authority, on this day personally appeared the undersigned
affiant who, being by me duly sworn, under oath and states the following:
1 My name is Amirali Virani. I am over 18 years of age have never been convicted of a
felony or a crime of moral turpitude and am fully competent to make this affidavit. I
have personal knowledge of the facts stated herein by virtue of my being a licensed real
estate agent and the individual that was involved in all the transactions at issue as
purchaser and seller including the closings and foreclosure and they are true and correct.
Exhibits 1 — 58 are true and correct copies of the actual documents and the signatures
thereon are of the person who signed them.
I had an initial introduction to Ginger Blair by Real Estate Manager /Broker Nizar
Sunesra in December 2019. My Real Estate broker Nizar Sunesara requested my
assistance with his family member aunt, Ginger Blair. He texted me her contact
information to cal] her to see if I could lend her money and buy her home to cash out
equity for an urgent matter. She needed $30,000 to $40,000, but could not get
conventional lending. Ginger Blair called me after a couple of days and her proposal to
me was that I would buy her home at 2 Edgewood Forest Court, Spring, Texas 77381
from her, rent it back to her and then she would buy the home back from me after 6
months using her bank. I responded by agreeing to a purchase price, rent price and buy
back price, It was agreed that | would purchase her home, for $211,000 which includes
EXHIBIT 1
which includes Ginger Blair as seller paying all costs). I would pay off the balance on
her mortgage of $157,571.42 and give her the equity back after closing and that
amount ended up bring $38,528.58. I would then sell it back to her 6 months later at
her agreed sale price. We decided to have a face-to-face meeting.
My first meeting with Ginger Blair was on December 5, 2019. (See email — attached
Exhibit 1) I drafted the three contracts to make certain all terms were in writing and to
avoid any miscommunication. I took the meeting in person and brought the
documents for her review. During the process I asked her to:
e fill out a lease application at a later date.
° sign a third-party finance addendum notifying her that 1 would need to
obtain a loan for the purchase. Third party finance addendum was signed
by Ginger Blair on 12/9/2019 and indisputably gives her clear knowledge
that I, Amirali Virani, am getting a loan to fund the anticipated closing of
the purchase from Ginger 12/30/2019. (See third party financing
agreement - attached Exhibit 2)
At this meeting, we reviewed and signed at that time or a later date:
the Purchase Contract (See attached Exhibit 3),
A lease application was sent to Ginger Blair as the new tenant on
December 11, 2019, Ginger Blair returned to the lease application
December 16, 2019 to myself as the landlord dated. (See attached
Exhibit 4) which I approved.
the Lease Back Agreement (See attached Exhibit 5) and
the Sell Back Agreement (See attached Exhibit 6) This was for her
to purchase the home back as agreed.
The meeting was at the Hana Cafe at 25282 Northwest Frwy, Cypress, TX
77429, (See email - attached Exhibit 7)
4. Isent the Purchase Contract sent to Alamo title on the same day, December 5, 2019.
5. With the Purchase Contract, I obtained the financing necessary in the amount of
$211,000. The door code sent by Ginger Blair for inspection during option period.
(See email - attached Exhibit 8)
Alamo Title Company did the closing (See closing documents - attached Exhibit 9 -
Business Record Affidavit of Amy Brindle with closing file attached). The loan I
obtained was through CMG (See first page of Closing Disclosure contained in Exhibit
9) and was a conventional loan with no federal backed loan or involvement
whatsoever as evidence in the loan closing documents in Exhibit 9. The following
were done leading up to the closing:
e Received Survey from Seller and sent to title company. (See attached
Exhibits 10 & 11)
Received the earnest money which was deposited on December 7,
2019. (See attached Exhibit 12)
Received the title firm’s approved survey on December 13, 2019. (See
attached Exhibit 13)
Tax Certificate was ordered on December 10, 2019. (See attached Exhibit
14& 15)
The Alamo Title Point of contact was:
Any Brindle
Escrow Officer
714 W. Magnolia Avenue
Ft. Worth, TX 76104
817.806.0250 Office
817.806.0257 Direct
682.334.7644 Fax
Amy.Brindle@alamotitle.com
Ginger Blair sent a follow up email requesting the closing date. (See email
- Exhibit 16)
7. The closing occurred on January 3, 2020. Ginger Blair received the $38,528.58 and
started being a tenant for the 6 months leading up to her repurchase of the property.
(See Final Executed Closing disclosure - Exhibit 17). 1 paid off the remaining
balance of Ginger Blair’s original mortgage note after negotiating a discount with the
lender. Discounts of this nature are normally due to the mortgage company wanting
to get off an account that is problematic for a variety of reasons including difficulty
getting paid regularly on the note.
I began to help Ginger Blair with getting a loan for the buyback of the property. I
introduced her to CMG Financial on February 5, 2020. (See email for introduction —
attached Exhibit 18 & 19)
Matt Mazzocco | Mortgage Loan Officer
CMG Financial | Corporate NMLS# 1820 [NMLS# 1014556
13750 San Pedro Ave Ste 470 | San Antonio, TX 78232
Cell: 210.677.5640 | Email: mattm@cmgfi.com
Web: www.cmefi.com
Ginger Blair filed application for conventional loan approval. She was declined. This
was due to the same issues she had originally (when trying to get a refinance before
our introduction), specifically her credit and additionally, during this time period:
° She immediately began having trouble paying the rent. She was late on
making rent payments. (See emails — attached Exhibit 20 & 21)
Ginger Blair sent an email that funds for down payment for the
conventional loan she applied for with CMG were delayed by her Trust.
(See email — attached Exhibit 22)
10 Ginger shared the document showing final release of $80,000 from her trust manager.
(See emails — attached Exhibit 23). This was after she needed to show funds for
financing with CMG. This was after she had been declined by CMG. This is the
reason for my offering to finance it myself with a wrap-around note. I agreed to pay
the original note from when I purchased the property from her and she agreed to sign
a note to pay me the repurchase price in payments so she could repurchase her house.
This was because she could not qualify for financing.
11 I retained Sarah N. Montes Texas Pride to prepare and manage documents for the
private loan closing.
RMLO/Residential Mortgage Loan Originator
www.TexasPrideLending.com
Smontes@TexasPrideLending.com
NMLS #366626 / NMLS #1479522
12 There were two conference calls with Sarah Montes, myself and Ginger Blair prior to
closing. The first was an introduction to Texas Pride. The second was to help Ginger
Blair understand the closing costs, down payment and fees. (See Conference all
setups - attached Exhibit 24 & Exhibit 25). We even h
Preview
CAUSE NO. 21 03044 GINGER BLAIR IN THE DISTRICT COURT OF Plaintiff MONTGOMERY COUNTY, TEXAS AMIRALI VIRANI Defendant JUDICIAL DISTRICT COURT DEFENDANT, AMIRALI VIRANI TRADITIONAL MOTION FOR SUMMARY JUDGMENT COMES NOW, Defendant, AMIRALI VIRANI (hereinafter sometimes referred to as Defendant”), and files this TRADITIONAL MOTION FOR SUMMARY JUDGMENT, and in support thereof states the following: FACTUAL STATEMENT AND SUMMARY OF THE ARGUMENT In late 2019, Plaintiff wanted a certain sum of money Due to her credit situation, she could not access traditional credit institutions. She was referred to Defendant by a friend of Plaintiff. (See attached Exhibit 1 Affidavit of Amirali Virani Paragraph 1) In order to get the funding she desired, Plaintiff contractually her property at 2 Edgewood Forest Court, Spring, Texas 77381 to Defendant for its original loan mortgage amount, subject to Defendant paying the remaining balance. To do this, Defendant procured a mortgage (not federally backed) by using the executed sales contract prior to closing as is normally done (A person cannot close on a property without lining up funding in advance) The Plaintiff knew this as she signed a Third Party Financing Agreement (See attached Exhibit 1 Affidavit of Amirali Virani sub exhibit 2) Defendant and Plaintiff closed on the property with Defendant paying Plaintiff the funding she sought and Defendant paying off Plaintiffs original mortgage balance (at a negotiated discount) Plaintiff received, acknowledged and Page of executed all closing documents and buyer and seller statements. (See attached Exhibit 1 - Affidavit of Amirali Virani - Paragraphs | - 7) 3. As part of this contract for sale, Plaintiff agreed to then purchase the property back from Defendant for the then market value in June of 2020. Plaintiff was to then begin renting the property from Defendant for 6 months. Defendant paid Plaintiff the majority of the equity, the difference between the Plaintiff's original mortgage amount and the mortgage balance. Defendant was able to negotiate a lesser payoff of the mortgage balance. Up to that point in time in June of 2020, Defendant had only received the discounted payoff of the original mortgage of Plaintiff as profit. Plaintiff inconsistently and incompletely paid the rental payments that were due in the six (6) month period between closing on the sale and closing on the resale. (See attached Exhibit 1 - Affidavit of Amirali Virani - Paragraphs | - 7) 4. Defendant’s remaining profit was to be from the resale of the property in June of 2020 per the original agreement at the agreed price which was market value at the time of the original sale to Defendant. The Plaintiff was unable to get conventional financing for the repurchase. Therefore, the repurchase financing was done by a traditional wrap around note which had the Defendant financing the resale personally (a private loan not federally backed). This was for the same reason she could not refinance in the first place to get her equity, specifically her lack of credit worthiness. The closing was a private closing as no mortgage company was involved and no title company was necessary. Plaintiff could not come up with all the funds necessary to close on the repurchase. Defendant then allowed the Plaintiffto delay payment of closing costs in the amount of $4,800 by doing an Amendment to the Contract and a Note to support the late payment of those funds. This note for $4,800 was on a timed schedule of payments. Plaintiff could not afford the $5,600 fee of the document processing company, Texas Pride. To make the Page 2 of 18 closing go through, the Defendant paid this fee at closing. Plaintiff received, acknowledged, and executed all closing documents and buyer and seller statements. (See attached Exhibit 1 - Affidavit of Amirali Virani - Paragraph 7 - 14) 5. The Defendant’s financing of the original purchase transaction with CMG did have a “due on sale” clause but it has not been invoked by CMG nor is the CMG note not in good standing. The wrap note is not a violation of this clause and Defendant now has ownership of the property. So, there is no present transfer. Plaintiff executed an agreement to this type of financing and not notifying the Defendant’s lender CMG. Moreover, the Plaintiff does not have standing to raise this issue as a matter of law as they are not in privity with the contract between Defendant and CMG. (See attached Exhibit | - Affidavit of Amirali Virani - Paragraph 14) 6. The Plaintiff failed to make any of the required payments under the $4,800 note and the main wrap note. Despite trying to work with Plaintiff, Defendant could not get Plaintiff to make payments (now going on one (1) year). Defendant had his attorney send a notice of default and acceleration of the wrap round note and foreclosed on it. Defendant bought it at auction and the trustee transferred title. Defendant filed for eviction in Justice of the Peace Court. The Plaintiff filed this action attempting to muddy the very clear waters, including but not limited to inaccurately claiming the CARES Act moratorium applies. The Justice of the Peace abated the eviction until this litigation is resolved. (See attached Exhibit 1 - Affidavit of Amirali Virani - Paragraph 15 - 19) 7. It is Defendant’s understanding that Plaintiff counsel attempted to obtain a TRO without notice to Defendant. Despite Plaintiff counsel having obtained citation, for some reason he is not serving Defendant (maybe for the Plaintiff to continue to live in the house without paying anything). (See Court’s file which is incorporated herein by reference) Thus, Defendant Page 3 of 18 has voluntarily entered an appearance and file this Motion for Summary Judgement as time is of the essence and all issues are not able to be disputed factually based on all the signed acknowledgments and disclosures of the Plaintiff and are simply not actionable as a matter of law. 8. It is important to note that this is not a suit for title, but merely a question as to the foreclosure which is not title, but simply the right to immediate possession which is within the sole jurisdiction of the JP Court. The Plaintiff has not made any actionable factual allegation. IL. MOTION FOR SUMMARY JUDGMENT STANDARDS 9. Defendant realizes the court knows the standards for Summary Judgment under Texas Law. However, in the interest of the completeness of this Motion these standards are briefly provided below. A. Standards for Traditional Summary Judgment (Texas Rule of Civil Procedure 166a) 10. Summary Judgment is appropriate when the movant is able to produce evidence to disprove, as a matter of law, at least one element of each of the Plaintiffs’ pled causes of action. See Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true and every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon v. Mr. Property Management Co. 690 S.W.2d 546, 548-49 (Tex. 1985). lll. SUMMARY JUDGMENT EVIDENCE 11. This motion will set forth the arguments why Defendant Amirali Virani’s Traditional Page 4 of 18 Motion for Summary Judgment should be granted. The evidence includes the following exhibits which are incorporated herein by reference: A Exhibit 1 — Affidavit of Amirali Virani with Sub-Exhibits 1 — 58 including: e affidavits of business records for two custodians for the two closing file and e affidavits of mailing and posting relating to the foreclosure Iv. ARGUMENTS AND AUTHORITIES SUPPORTING TRADITIONAL MOTION FOR SUMMARY JUDGMENT A. Plaintiff's Allegations: 12. The plaintiffs only legal allegation is a vague reference to “Illegal Foreclosure” without pointing to any legal basis for same. 13. In the Factual Background, Plaintiff claims: e For the first transfer of the property from Plaintiff to Defendant 1 Before the original transfer of the property from Plaintiff to Defendant, Defendant “had already gotten a loan”. Defendant ‘s attorney “prepared” the deed. Defendant paid the balance of Plaintiff's original mortgage “at a discount amount”. e For the transfer of the property back to Plaintiff from Defendant 4 Defendant attempted “an illegal and unauthorized wrap-around note” because the note is alleged to violate Defendant’s contract with CMG Mortgage due to a “due on sale” clause. Defendant instructed his attorney who is acting as a trustee to not inform CMG. Plaintiff signed a deed of trust to Defendant’s attorney as trustee and prepared by Defendant’s attorney for the repurchase amount in the wrap around note. Page 5 of 18 Defendant’s attorney drafted a deed of trust for the $4800 for which Defendant insisted Plaintiff was short in closing costs. The closing for the repurchase did not take place in a formal sit-down setting with all parties present at the same time. There has been “confusion” concerning the actual numbers regarding interest, fees and costs. 10. Plaintiff has tried on numerous occasions to get clarity. ll. The purpose was to scam Plaintiff out of her house. 12. After stalling Plaintiff for 2 months, Defendant decided to accelerate the note. 13. Defendant allegedly posted and foreclosed on the property. 14. When asked for a payoff, Defendant sent a payoff gouge of $316,000 riddled with illegal and unconscionable fees and expenses. 15. Defendant allegedly posted Plaintiffs property for foreclosure on January 5, 2021. 16. As recently as January 13, 2021, Defendant posted a 3 day notice to vacate the property. This is very harsh and unreasonable. B._Defendant’s Response: Plaintiff Received What She Agreed To In Writing And Has Paid Nothing Since Repurchasing The Property In June 2020: 14. The plaintiff needed the equity from her home in an emergency and could not get it through conventional financing. She, in a signed contract, sold her property to the Defendant (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 2 & sub exhibit 3) and received the amount of equity that she agreed to in a signed closing statement. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 7 & sub exhibit 17) 15. The Plaintiff agreed in a signed a contract to repurchase the property for $260,000. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 3 & sub exhibit 6) Page 6 of 18 16. The Plaintiff could not obtain conventional financing and would have lost the property if Defendant had not offered to privately finance the repurchase transaction with a wrap around note. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraphs 8-10 & sub exhibit 28) 18. Plaintiff could not pay all the closing costs (despite receiving $80,000 from her trust fund in (See attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 23). Defendant delayed Plaintiff from paying the costs she could not pay by allowing her to execute a $4,800 note to be paid on a schedule up to 30 days after closing. (See attached Exhibit | - Affidavit of Amirali Virani — sub exhibit 29) Plaintiff could not pay the fees ($5,600) of the company that prepared the closing documents for the repurchase, Texas Pride. Defendant volunteered to pay this to make the transaction possible. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 13 sub exhibit 30 & 31) 19. Plaintiff failed to make consistent and complete rent payments for the time period between Defendant purchasing the property and the Plaintiff repurchasing the property. (See attached Exhibit | - Affidavit of Amirali Virani — Paragraph 15 sub exhibit 45) 20. After the repurchase, Plaintiff failed to make a single payment from July 2020 to the present. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 15 & 16 sub exhibit 32) She has been living payment free in the property. Before Original Transfer Of The Property From Plaintiff To Defendant, Defendant “Had Already Gotten A Loan”. 21. The Plaintiff agreed in writing to the Defendant obtaining third party financing prior to the closing as documented in attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 3 sub exhibit 2) and set out below: Page 7 of 18 THIRD PARTY FINANCING ADDENDUM TO CONTRACT CONCERNING THE PROPERTY AT 2 Edgewood Forest Ct Soring (Street Address and City) 1. TYPE OF FINANCING AND DUTY TO APPLY AND OBTAIN APPROVAL: Buyer sha apply promptly for all financing described below and make every reasonable effort to obtain approval for the financing, including but not limited to furnishing all information and documents required by Buyer's lender. (Check applicable boxes): |X] ACCONVENTIONAL FINANCING: [X]_(1) A first mortgage loan in the principal amount of $ 220,000.00 financed PMI premium, due in full in 30 year(s), with interest not to exceed per annum for the first 4 year(s) of the loan with Origination Charges as shown on Buyers Loan Estimate for the loan not to exceed % of the loan. 5. AUTHORIZATION TO RELEASE INFORMATION: A. Buyer authorizes Buyer's lender to furnish to Seller or Buyer or their representatives information relating to the status of the approval for the financing. B. Seller and Buyer authorize Buyer's lender, title company, and escrow agent to disclose and furnish a copy of the closing disclosures and settlement statements provided in relation to the closing of this sale to the parties' respective brokers and sales agents provided under Broker Information. Electronically Signed SJ 12/09/2019 10:11 AM CST Buyer AMIRALI VIRANI Electronically Signed y 12/09/2019 10 51 AM CST Seller GINGER BLAIR Moreover, it is axiomatic that a buyer would have to get financing before the transfer if the buyer is to get a transfer of the property. Property does not transfer for “free”. Defendant’s Attorney “Prepared” The Deed: 22. A deed transferring title is normally prepared by an attorney. Plaintiff was not funding the closing, and as a result, was not paying attorneys to prepare the documents. Plaintiff agreed in writing to the Defendant’s attorney’s role and that she could have her own counsel. (See attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 34) Moreover, Plaintiff does not Page 8 of 18 point out anything that is objectionable in the “deed” prepared by the Defendant’s attorney. (See Deed of Trust attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 35) Defendant Paid The Balance Of Plaintiff's Original Mortgage “At A Discount Amount”. 23. The Defendant did negotiate a discount on the payoff of the Plaintiff's original mortgage note. However, this was a transaction between the Defendant and the note holder, not the Plaintiff. The Plaintiff has no standing to complain as Defendant’s ability to get a favorable agreement (likely due to Plaintiff's payment history and the note holder wanting off the note). Defendant’s obligation to Plaintiff in the purchase agreement was to pay off her original mortgage obligation. It is his benefit and his alone if he gets favorable terms. She cannot be heard to complain about Defendant’s legal right to negotiate with third parties. Plaintiff received the greed upon equity from her home for which she contracted which was the sales price minus the amount she owed on her mortgage. The fact that the Plaintiffs original lender was willing to negotiate the balance of the mortgage is not only ordinary business practice but is more of a testament to the problems that mortgagee had with the Plaintiff. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 7) The reason this is even an issue is the Plaintiff has had an irreparable credit history that prevented her from getting conventional financing. [Grouped] Defendant Attempted “An Illegal And Unauthorized Wrap-Around Note” Because The Note Is Alleged To Violate Defendant’s Contract With CMG Mortgage Due To A “Due On Sale” Clause. Defendant Instructed His Attorney Who Is Acting As A Trustee To Not Inform CMG. Plaintiff Signed A Deed Of Trust To Defendant’s Attorney As Trustee And Prepared By Defendant’s Attorney For The Repurchase Amount In The Wrap Around Note. 24. The Note executed by Plaintiff and Defendant is marked and attached Exhibit 1 Page 9 of 18 Affidavit of Amirali Virani — sub exhibit 28). The Texas Supreme Court has affirmed the validity of a wrap around note and explained exactly how it works: “Under wraparound financing, the purchaser makes an installment note which includes, or "wraps around," the principal balance of an underlying indebtedness. The purchaser expressly does not assume responsibility for the underlying indebtedness, and he accepts title subject to the lien or liens which secure payment of that underlying indebtedness.” James M. Summers, Trustee and English Village Apartments, Ltd. v. Consolidated Capital Special Trust, vs. Consolidated Capital Special Trust, 783 S.W.2d 580 at 580 (Tex. 1989). This is exactly the contract/note into which the Plaintiff and Defendant entered. 25. The original note that Defendant obtained financing under from CMG did have a due on sale clause, which does not prohibit resale of the property, but merely states that the mortgage company “may require” the acceleration of the note if done without consent. It is not an absolute and in fact has not happened: “IT IS UNDERSTOOD and we are aware that the Deed of Trust dated January 3, 2020 executed by Amirali Virani to Thomas E. Black, Jr., trustee, recorded in County Clerk File No. 2020001147 of the real property records of Montgomery County, Texas, includes an acceleration clause where by the Lender may require that the entire unpaid balance of the note becomes immediately due and payable if property is sold without written consent of the lienholder. A copy of said Deed of Trust is attached herewith for reference as Exhibit "A". [Emphasis Added] 26. Moreover, the courts have ruled that any obligation in a deed of trust between the original borrower and a mortgage company is between those two alone. A later third-party purchaser does not have standing to complain of any perceived formality that has not been met if the formality would only make the transaction voidable but not void. “Under these rules, a mortgagor who is not a party to a deed-of-trust assignment must allege a ground that would render the assignment void to have standing to the challenge the assignment. See Melendez v. Citimortgage, Inc., No. 03-14-0029-CV, 2015 Tex. App. LEXIS 10260, at *15-17 n.3 (Tex. App.—Austin Oct. 2, 2015, no pet.) (mem. op.) (relying upon cases in which non-party mortgagor did not have standing to challenge assignment of mortgage because grounds raised would have rendered assignment only voidable, not void, and noting that alleging ground that would render assignment void is Page 10 of 18 "only circumstance in which mortgagors who are not a party to a deed-of-trust assignment have standing to challenge that assignment").” Standiford v. Citimortgage, Inc., 2016 LEXIS 11269; 2015 WL 6831578 (Tex. App — Austin 2015 - petition denied).This due on sale provision clearly does not make it void as the original note holder “may” invoke the clause, not “shall”. Finally, Plaintiff has no standing to raise this as she has no privity to the CMG Deed of Trust. 27. As to the Defendant’s attorney not informing CMG, this is an absolute misconstruction of the agreement signed by the Plaintiff. This provision merely states that the Plaintiff and Defendant “have determined not to seek the written consent” of lienholder to such sale and have told the Defendant’s attorney not to do so and release her: FUTHERMORE, all of the undersigned have determined not to seek the written consent of lienholder to such sale and we have DIRECTED Umatiya Law Firm, PLLC NOT to notify _lienholder_of_this transaction _and_herewith release DIRECTED Umatiya Law Firm, PLLC of any responsibility if lienholder determines that this transaction constitutes default under the terms of their Deed of Trust. FURTHERMORE, we acknowledge that we have been advised by Umatiya Law Firm, PLLC to CONSULT AN ATTORNEY BEFORE SIGNING, if we do not understand the effects of any part of this agreement. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 14 sub exhibit 44) 28. As to the Plaintiffs agreement to the nondisclosure of the repurchase and the statement that Defendant’s attorney receiving the Deed of Trust as trustee and being the one who prepared it, Plaintiff was not paying for any document preparation (as she could not even come up with all closing costs) and, again, Plaintiff signed a disclosure of the role of the Defendant’s attorney which also advised she could get her own counsel: “3, Attorney represents only Lender and no other party involved in this transaction, although Attorney's legal fees may be paid by Borrower. 5. Borrower has the right to be represented by its own attorney and to have its attorney Page 11 of 18 review the Loan documents (including the deed, if there is one) and closing documents and be present at the closing of the Loan.” (See attached Exhibit 1 - Affidavit of Amirali Virani — sub exhibit 34) Defendant’s Attorney Drafted A Deed Of Trust For The $4800 For Which Defendant Insisted Plaintiff Was Short In Closing Costs. 29. Plaintiff did not have the money for the full closing costs. She signed a Note to this effect at closing. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 13 sub exhibit 29) She agreed with this arrangement in writing and then failed to comply by never paying the note. She also was not paying for the fees for document preparation. Again, she signed the above referenced disclosure as to the Defendant’s attorney’s role and that Plaintiff could have her own counsel. (See attached Exhibit | - Affidavit of Amirali Virani — sub exhibit 34) The Closing For The Repurchase Did Not Take Place In A Formal Sit-Down Setting With All Parties Present At The Same Time. 30. Closings are not a formal proceeding and can be done at a title company or in an office. It is normal for only one side to attend at a time though it can occur with both sides there if so desired. There is no legal requirement that can be found to support the concept that the closing has to have all sides present. [Grouped] There Has Been “Confusion” Concerning The Actual Numbers Regarding Interest, Fees And Costs. Plaintiff Has Tried On Numerous Occasions To Get Clarity. 31. Confusion is not an element ofa cause of action. Further, it is irrelevant when all your questions regarding the interest, fees and costs were addressed in two conference/video calls pre- closing and on post-closing. (See attached Exhibit | - Affidavit of Amirali Virani — Paragraph 12 Page 12 of 18 sub exhibit 24, 25, 26) This is especially so when Plaintiff signs off on the closing balance sheet as to the numbers therein. Plaintiff has a legal obligation to read the legal documents that she signs. The Purpose Was To Scam Plaintiff Out Of Her House. 32. A mere statement by Plaintiff that the purpose was to “scam” her is simply puffing when the transaction trail on both transactions are viewed in the light of day as laid out above. The “scam” is Plaintiff sitting on a trust fund and not paying all her rent and paying what she paid untimely, not fully funding her share of the closing costs, then not paying anything to live in the property since the closing one year ago and then trying to get an ex-party TRO. After Stalling Plaintiff For 2 Months, Defendant Decided To Accelerate The Note. 33. The Defendant did not stall for two months. The Plaintiff was the one stalling, while not paying anything after closing for August, October, November of 2020. She even sent a threatening email on November 24, 2020: “Amir I have contacted my attorney regarding the acceleration of this loan . She is out of town until next Monday . We will be counter suing under the Usury laws in the state of Texas. I will including Texas Pride and Covey in the case. I believe this entire transaction has been misrepresented to me. I hope the holidays find you happy and heathy. Ging” (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 17 sub exhibit 46) This email from Plaintiff showed she never intended to fulfill her obligations. 34. For all of these reasons, the notice of default was mailed out in November. (See attached Page 13 of 18 Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 47 &48) This was after attempts were made to get Plaintiff to pay. The Notice of Foreclosure went out on December 15, 2020. (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 49) After Plaintiff ignored the situation for months and threatened a suit that did not come, Plaintiff acknowledged in an email that she in fact owned the debt and wanted her family to pay the amount due on January 2, 2021 with the foreclosure sale being the January 5, 2021: “Could you please send me the foreclosure letter from your attorney I am desperately trying to get family help to save my home. They want the letter from the attorney to try to work this out for me” (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 52) Defendant Allegedly Posted And Foreclosed On The Property. 35. There is no “allegedly” posted and foreclosed property. Defendant’s Attorney actually did send a Notice of Default and Acceleration to the Plaintiff on November 4, 2020 with documentation of mailing: “Dear Ms. Blair: This letter is to give you notice of default under the referenced loan documents. This default consists of the following: Loan AV2001 September 15, 2020 Payment $ 2,751.00 September 15, 2020 Payment Late Fee $ 137.55 October 15, 2020 Payment $ 2,751.00 October 15, 2020 Payment Late Fee $ 137.55 Loan AV2002 September 19, 2020 Payment $ 4,383.80 Insurance on Property Purchased by Lien Holder $1,572.00 Total Outstanding Balance: $ 11,732.90 You are notified that if the default is not cured within twenty days from the date of posting of this letter, the mortgagee intends to enforce its rights under the loan documents. Specifically, the mortgagee intends to accelerate the maturity of the Page 14 of 18 note and demand payment for the full unpaid principal balance, together with accrued but unpaid interest and all fees and expenses, as allowed by law. If the amount due is not timely paid, the mortgagee intends to foreclose the lien under the loan documents.” (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 47 & 48) Plaintiff ignored this letter requesting she come current with $11,732.90. She also ignored the section that said in 20 days, the note would be accelerated with all interest and penalties. When Asked For A Payoff, Defendant Sent A Payoff Gouge Of $316,000 Riddled With Illegal And Unconscionable Fees And Expenses. 36. Defendant did not “gouge” the Plaintiff. The Defendant did send on December 15, 2020 the promised Notice of Trustee’s Sale for foreclosure with a demand for the accelerated amount of $239,825 principle and $7,754.36 interest through December 15, 2020 with additional interest of $64.62 per day going forward. (See attached Affidavit of mailing and letter - Exhibit 49). Any later amount Plaintiff is referring to would be with all additional penalties, interest, late fees, taxes and attorney fees at that time. This is as opposed to the foreclosure demand of December 15, 2020, referenced above. Defendant Allegedly Posted Plaintiff’s Property For Foreclosure On January 5, 2021. 37. Again, there was no “allegedly” posted property for foreclosure. Defendant “actually” did post the property for foreclosure for a date of January 5, 2021 which is documented by the Affidavit of Posting (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 50) and photograph of the posting (See attached Exhibit | - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 51) and Defendant’s email to Plaintiff advising of the date, time and location of the foreclosure sale (See attached Exhibit 1 - Affidavit of Amirali Virani — Paragraph 18 sub exhibit 52). Page 15 of 18 As Recently As January 13, 2021, Defendant Posted A 3 Day Notice To Vacate The Property. This Is Very Harsh And Unreasonable. 38. The point of a foreclosure is to gain possession of the property. The Texas Property Code allows for eviction by giving a three day notice to vacate. Yes, it is unpleasant to all concemed, but is to be expected when Plaintiff does not pay anything since her closing to repurchase and ignores legal correspondence advising her of the penalties of same. 39. It is important to note that this suit is not to ascertain title. It is merely a vague allegation of wrongful foreclosure which has been established to be untrue as a matter of law by the undisputed summary judgement evidence. 40. The JP court and on appeal, the county court have jurisdiction of the immediate right to possession based on prima facia evidence of a superior right to possession: “Justice court and a county court at law had subject-matter jurisdiction to grant pos: ion of a borrower’s residential property that a bank purchased at a non- judicial foreclosure sale to the bank in its forcible-detainer action because the landlord- tenant relationship created by the foreclosure of the deed of trust executed by the borrower provided an independent basis for determining pos: ion without first adjudicating title. The deed of trust expressly provided that, in the event of a non- judicial foreclosure sale, the borrower would become a tenant at sufferance if she did not surrender possession of the property, and the bank demonstrated that its claim of right to immediate poss sion was based on documents indicating its purchase of the property at a foreclosure sale, that the bank gave the borrower notice to vacate the property, and that the borrower refused to vacate the property.” Trotter v. Bank of N.Y. Mellon, 2013 Tex. App. LEXIS 5703 (Tex. App. Houston 14th Dist. May 9, 2013). [emphasis added] The Deed of Trust for this wrap note had this very language” “E.2. If any of the Property is sold under this deed of trust, Grantor must immediately surrender possession to the purchaser. If Grantor does not, Grantor will be a tenant at sufferance of the purchaser, subject to an action for forcible detainer.” Under the Property Code Sec. 24.002. Forcible Detainer.: (a) A person who refuses to surrender possession of real property on demand commits a Page 16 of 18 forcible detainer if the person: (J) is a tenant or a subtenant wilfully and without force holding over after the termination of the tenant’s right of possession; (2) is a tenant at will or by sufferance, including an occupant at the time of foreclosure of a lien superior to the tenant’s lease; or (3) is a tenant of a person who acquired possession by forcible entry. (b) The demand for possession must be made in writing by a person entitled to possession of the property and must comply with the requirements for notice to vacate under Section 24.005. Defendant met the requirements of Property Code Sec 24.005: “(a) If the occupant is a tenant under a written lease or oral rental agreement, the landlord must give a tenant who defaults or holds over beyond the end of the rental term or renewal period at least three days’ written notice to vacate the premises before the landlord files a forcible detainer suit, unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. (b) If the occupant is a tenant at will or by sufferance, the landlord must give the tenant at least three days’ written notice to vacate before the landlord files a forcible detainer suit unless the parties have contracted for a shorter or longer notice period in a written lease or agreement. (f) Except as provided by Subsection (f-1), the notice to vacate shall be given in person or by mail at the premises in question. Notice in person may be by personal delivery to the tenant or any person residing at the premises who is 16 years of age or older or personal delivery to the premises and affixing the notice to the inside of the main entry door. Notice by mail may be by regular mail, by registered mail, or by certified mail, return receipt requested, to the premises in question. (f-1) As an alternative to the procedures of Subsection (f), a landlord may deliver the notice to vacate by securely affixing to the outside of the main entry door....” Defendant gave three days notice to vacate and posted it on the front door before he filed for eviction. 41. Therefore, the Court should GRANT Defendant Amirali Virani’s TRADITIONAL Motion for Summary Judgment, as a matter of law. Page 17 of 18 Vv. PRAYER WHEREFORE PREMISES CONSIDERED, Defendant, Amirali Virani, asks the Court to grant his TRADITIONAL MOTION FOR SUMMARY JUDGMENT requested herein and to DISMISS all Plaintiff's claims against this defendant, and for such other and further relief to which Defendant, may show himself justly entitled. Respectfully submitted, FAHL & DONALDSON, PLLC /s/Glenn J. Fahl GLENN J. FAHL gfahl@fahldonaldson.com State Bar No. 06773080 801 Louisiana Street, Suite 400 Houston, Texas 77002 713/627-7800 713/627-7804 Facsimile ATTORNEYS FOR DEFENDANT, AMIRALI VIRANI CERTIFICATE OF SERVICE This shall certify that the foregoing instrument has been served pursuant to Texas Rule of Civil Procedure 21a via hand delivery, mail, commercial delivery service, fax, email, or electronically by e-filing service, and/or fax by the e-file service as follows: Via e-file service email and/or via facsimile: (713) 812-1418 Samuel L. Milledge The Milledge Law Firm 2500 East T.C. Jester Blvd., Suite 510 Houston, Texas 77008 Attorney for Plaintiff 06/22/2021 /s/Glenn J. Fahl DATE Glenn J. Fahl Page 18 of 18 CAUSE NO. 21-03-03044 GINGER BLAIR IN THE DISTRICT COURT OF Plaintiff VS. MONTGOMERY COUNTY, TEXAS AMIRALI VIRANI Defendant 284" JUDICIAL DISTRICT COURT AFFIDAVIT OF AMIRALI VIRANI ' STATE OF TEXAS ' COUNTY OF HARRIS BEFORE ME, the undersigned authority, on this day personally appeared the undersigned affiant who, being by me duly sworn, under oath and states the following: 1 My name is Amirali Virani. I am over 18 years of age have never been convicted of a felony or a crime of moral turpitude and am fully competent to make this affidavit. I have personal knowledge of the facts stated herein by virtue of my being a licensed real estate agent and the individual that was involved in all the transactions at issue as purchaser and seller including the closings and foreclosure and they are true and correct. Exhibits 1 — 58 are true and correct copies of the actual documents and the signatures thereon are of the person who signed them. I had an initial introduction to Ginger Blair by Real Estate Manager /Broker Nizar Sunesra in December 2019. My Real Estate broker Nizar Sunesara requested my assistance with his family member aunt, Ginger Blair. He texted me her contact information to cal] her to see if I could lend her money and buy her home to cash out equity for an urgent matter. She needed $30,000 to $40,000, but could not get conventional lending. Ginger Blair called me after a couple of days and her proposal to me was that I would buy her home at 2 Edgewood Forest Court, Spring, Texas 77381 from her, rent it back to her and then she would buy the home back from me after 6 months using her bank. I responded by agreeing to a purchase price, rent price and buy back price, It was agreed that | would purchase her home, for $211,000 which includes EXHIBIT 1 which includes Ginger Blair as seller paying all costs). I would pay off the balance on her mortgage of $157,571.42 and give her the equity back after closing and that amount ended up bring $38,528.58. I would then sell it back to her 6 months later at her agreed sale price. We decided to have a face-to-face meeting. My first meeting with Ginger Blair was on December 5, 2019. (See email — attached Exhibit 1) I drafted the three contracts to make certain all terms were in writing and to avoid any miscommunication. I took the meeting in person and brought the documents for her review. During the process I asked her to: e fill out a lease application at a later date. ° sign a third-party finance addendum notifying her that 1 would need to obtain a loan for the purchase. Third party finance addendum was signed by Ginger Blair on 12/9/2019 and indisputably gives her clear knowledge that I, Amirali Virani, am getting a loan to fund the anticipated closing of the purchase from Ginger 12/30/2019. (See third party financing agreement - attached Exhibit 2) At this meeting, we reviewed and signed at that time or a later date: the Purchase Contract (See attached Exhibit 3), A lease application was sent to Ginger Blair as the new tenant on December 11, 2019, Ginger Blair returned to the lease application December 16, 2019 to myself as the landlord dated. (See attached Exhibit 4) which I approved. the Lease Back Agreement (See attached Exhibit 5) and the Sell Back Agreement (See attached Exhibit 6) This was for her to purchase the home back as agreed. The meeting was at the Hana Cafe at 25282 Northwest Frwy, Cypress, TX 77429, (See email - attached Exhibit 7) 4. Isent the Purchase Contract sent to Alamo title on the same day, December 5, 2019. 5. With the Purchase Contract, I obtained the financing necessary in the amount of $211,000. The door code sent by Ginger Blair for inspection during option period. (See email - attached Exhibit 8) Alamo Title Company did the closing (See closing documents - attached Exhibit 9 - Business Record Affidavit of Amy Brindle with closing file attached). The loan I obtained was through CMG (See first page of Closing Disclosure contained in Exhibit 9) and was a conventional loan with no federal backed loan or involvement whatsoever as evidence in the loan closing documents in Exhibit 9. The following were done leading up to the closing: e Received Survey from Seller and sent to title company. (See attached Exhibits 10 & 11) Received the earnest money which was deposited on December 7, 2019. (See attached Exhibit 12) Received the title firm’s approved survey on December 13, 2019. (See attached Exhibit 13) Tax Certificate was ordered on December 10, 2019. (See attached Exhibit 14& 15) The Alamo Title Point of contact was: Any Brindle Escrow Officer 714 W. Magnolia Avenue Ft. Worth, TX 76104 817.806.0250 Office 817.806.0257 Direct 682.334.7644 Fax Amy.Brindle@alamotitle.com Ginger Blair sent a follow up email requesting the closing date. (See email - Exhibit 16) 7. The closing occurred on January 3, 2020. Ginger Blair received the $38,528.58 and started being a tenant for the 6 months leading up to her repurchase of the property. (See Final Executed Closing disclosure - Exhibit 17). 1 paid off the remaining balance of Ginger Blair’s original mortgage note after negotiating a discount with the lender. Discounts of this nature are normally due to the mortgage company wanting to get off an account that is problematic for a variety of reasons including difficulty getting paid regularly on the note. I began to help Ginger Blair with getting a loan for the buyback of the property. I introduced her to CMG Financial on February 5, 2020. (See email for introduction — attached Exhibit 18 & 19) Matt Mazzocco | Mortgage Loan Officer CMG Financial | Corporate NMLS# 1820 [NMLS# 1014556 13750 San Pedro Ave Ste 470 | San Antonio, TX 78232 Cell: 210.677.5640 | Email: mattm@cmgfi.com Web: www.cmefi.com Ginger Blair filed application for conventional loan approval. She was declined. This was due to the same issues she had originally (when trying to get a refinance before our introduction), specifically her credit and additionally, during this time period: ° She immediately began having trouble paying the rent. She was late on making rent payments. (See emails — attached Exhibit 20 & 21) Ginger Blair sent an email that funds for down payment for the conventional loan she applied for with CMG were delayed by her Trust. (See email — attached Exhibit 22) 10 Ginger shared the document showing final release of $80,000 from her trust manager. (See emails — attached Exhibit 23). This was after she needed to show funds for financing with CMG. This was after she had been declined by CMG. This is the reason for my offering to finance it myself with a wrap-around note. I agreed to pay the original note from when I purchased the property from her and she agreed to sign a note to pay me the repurchase price in payments so she could repurchase her house. This was because she could not qualify for financing. 11 I retained Sarah N. Montes Texas Pride to prepare and manage documents for the private loan closing. RMLO/Residential Mortgage Loan Originator www.TexasPrideLending.com Smontes@TexasPrideLending.com NMLS #366626 / NMLS #1479522 12 There were two conference calls with Sarah Montes, myself and Ginger Blair prior to closing. The first was an introduction to Texas Pride. The second was to help Ginger Blair understand the closing costs, down payment and fees. (See Conference all setups - attached Exhibit 24 & Exhibit 25). We even h