defendant gillespie’s rule 1.150 motion to strike sham pleadings-nov-10-2015

8/20/2019 Defendant Gillespie’s Rule 1.150 Motion to Strike Sham Pleadings-nov-10-2015

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THIS IS NOT A COMMERCIAL FORCLOSURE

IN THE CIRCUIT COUFIFTH JUDICIAL CIRIN AND FOR MARION

REVERSE MORTGAGE SOLUTIONS, INC.,CASE NO.: 2013-CA-0

Plaintiff, 42-2013-CA-000115-A

vs. Residential Home ForecHECM Reverse Mortga

NEIL J. GILLESPIE AND MARK GILLESPIE Florida Homestead of NAS CO-TRUSTEES OF THE GILLESPIEFAMILY LIVING TRUST AGREEMENTDATED FEBRUARY 10, 1997, ET AL.

Defendants.

________________________________________/

DEFENDANT GILLESPIE’S RULE 1.150 MOTION TO STRIKE SHAM PLE November 10, 2015

Notice of Criminal Conspiracy: Judge Stancil, Clerk Ellspermann and attorney CFla. Stat. section 777.04 Attempts, solicitation, and conspiracy

Defendant pro se Neil J. Gillespie, henceforth in the first person, a disabled,

indigent/insolvent non-lawyer, unable to obtain adequate counsel, a vulnerable adul

consumer of legal and court services affecting interstate commerce, states as follow

1. On November 9, 2015 the Marion County Clerk’s public online docket in th

captioned case shows “Default Entered” at document no. 228, 3 pages. (Exhibit 1)

2. The document appearing November 9, 2015 as document no. 228 at the “De

Entered” location described in paragraph 1 appears at Exhibit 2, but does not show a

Filing # 34264753 E-Filed 11/10/2015 10:26:06 AM


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DEFENDANT GILLESPIE’S RULE 1.150 MOTION TO STRIKE SHAM PLEADINGS November-10-2015

Notice of Criminal Conspiracy: Judge Stancil, Clerk Ellspermann and attorney Curtis Wilson

CASE NO.: 2013-CA-000115, 42-2013-CA-000115-AXXX-XX

“Default Not Entered Against Elizabeth Bauerle [By] Motion Filed W/The C

10/28/15 - you may Request A “Judicial” Default” followed by “NH” with aaround, and 11.9.15 below

3. Attorney Curtis Wilson is also known as Curtis Wilson, Esq., and is also kno

Alan Wilson, Fla. Bar No. 77669, of McCalla Raymer, LLC, and perhaps other nam

Florida Bar attorney directory page for Curtis Alan Wilson, Fla. Bar No. 77669. (Ex

4. The foregoing is evidence of a criminal conspiracy between Judge Hale Stan

David R. Ellspermann and attorney Curtis Wilson a/k/a/ Curtis Alan Wilson, agains

777, Florida Statutes, and section 777.04 Attempts, solicitation, and conspiracy.

5. On November 6, 2015 document no. 225 appeared as a 2 page “locked” eFil

on the Marion County Clerk’s public online docket. (Exhibit 4).

6. On November 9, 2015 document no. 225 was not “locked” and shows “AFF

CONSTRUCTIVE SERVICE FL BAR NO. 77669” (Unofficial Document, Exhibit

Wilson, Esq. (but signed Curtis Wilson Nov-03-2015) also known as Curtis Alan W

Bar No. 77669. The Unofficial Document, AFFIDAVIT OF CONSTRUCTIVE SER

BAR NO. 77669, (Exhibit 5) states in relevant part:

Before me, the undersigned authority, personally appeared, Curtis Wilson, E being duly sworn, deposes and says:

1. Affiant is the attorney for the Plaintiff in this action. He has retainedof Provest, LLC to make diligent search and inquiry to discover the name anof UNKNOWN SETTLORS BENEFICIARIES OF THE GILLESPIE FAMLIVING TRUST AGREEMENT DATED FEBRUARY 4, 1997, Defendant

ti d th t f th i thi t t t ti l l i i ti t


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7. DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLOS

EQUITY CONVERSION MORTGAGE (HECM); DEFENSES AND CLAIMS IN

RECOUPMENT; OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLA

# 23275828 E-Filed 02/03/2015 01:25:45 AM, appears as Exhibit 8, a separate 32 p

and negates the preceding AFFIDAVIT OF CONSTRUCTIVE SERVICE FL BAR

8. The foregoing is a continuation of the criminal conspiracy of Judge Hale Sta

David R. Ellspermann, and attorney Curtis Wilson, a/k/a Curtis Alan Wilson, see

DEFENDANT GILLESPIE’S RULE 1.150 MOTION TO STRIKE SHAM PLE

Notice of Criminal Conspiracy: Judge Stancil, Clerk Ellspermann and attorney C

RULE 1.150. SHAM PLEADINGS

9. The “Default Entered” at document no. 228, 3 pages (Exhibit 1) is a sham pl

must be stricken pursuant to Rule 1.150(a) Fla.R.Civ.P. The document appearing N

2015 as document no. 228 at the “Default Entered” location does not show a default

Instead, there is a hand-written message in the signature block for the Clerk of the C

of the document, which is “MOTION TO DEFAULT” dated November 3, 2015 and

Curtis Wilson, a/k/a Curtis Alan Wilson (Fla. Bar No. 77669) of McCalla Raymer, L

33997561 E-Filed 11/03/2015 at 12:50:25 PM. The hand-written message states:

“Default Not Entered Against Elizabeth Bauerle [By] Motion Filed W/The C10/28/15 - you may Request A “Judicial” Default” followed by “NH” with a

around, and 11.9.15 below


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(a) Motion to Strike. If a party deems any pleading or part thereof filed by to be a sham, that party may move to strike the pleading or part thereof befois set for trial and the court shall hear the motion, taking evidence of the resp parties, and if the motion is sustained, the pleading to which the motion is di be stricken. Default and summary judgment on the merits may be entered indiscretion of the court or the court may permit additional pleadings to be filecause shown.

(b) Contents of Motion. The motion to strike shall be verified and shall set the facts on which the movant relies and may be supported by affidavit. No tthe motion shall be required.

THIS IS NOT A COMMERCIAL FORCLOSURE

10. The Civil Cover Sheet Form 1.997 in this case appears at Exhibit 6 and was

Danielle N. Parsons, Fla. Bar # 0029364 of McCalla Raymer LLC. The Clerk’s stam

January 9, 2013 at 12.45 PM.

11. Counsel Parsons wrongly filed this action as a “Commercial foreclosure $5

$249,999” shown on Form 1.997 CIVIL COVER SHEET, II. TYPE OF CASE, atta

Verified Complaint, and signed by Plaintiff’s counsel Danielle Parsons, who represe

“I CERTIFY that the information I have provided in this cover sheet is accu best of my knowledge and belief”.

Counsel’s certification is a false official statement. This is a residential foreclosure.

12. Section 837.06, Florida Statutes, governs False official statements.

837.06 False official statements.—Whoever knowingly makes a false statemwriting with the intent to mislead a public servant in the performance of his duty shall be guilty of a misdemeanor of the second degree, punishable as pr775 082 775 083


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CERTIFY that the information I have provided in this cover sheet is accurate to the

knowledge and belief”. Counsel’s certification is false. This properly is the homeste

Gillespie under Section 4, Article X of the Florida Constitution. This action is a “Ho

residential foreclosure $50,001 -$249,999”. Oak Run is a residential 55+ communit

commercial activity is permitted. The HECM reverse mortgage was made on the res

property. It appears counsel’s false declaration was intended to deceive the Clerk an

that this is a commercial foreclosure, in violation of F.S. § 837.06, False official sta

14. Clerk Ellspermann filed my residential foreclosure as a commercial foreclos

failed to take corrective action when notified that the civil cover sheet (form 1.997)

See, AFFIDAVIT OF NEIL J. GILLESPIE OF RESIDENTIAL HOMESTEAD, TH

A COMMERCIAL FORCLOSURE, Filing # 23497600 E-Filed 02/07/2015 11:56:0

15. On December 24, 2014 I notified Gregory C. Harrell, General Counsel to D

Ellspermann, Marion County Clerk of Court & Comptroller (Exhibit 7),

RE: Clerk’s duty and the civil cover sheet (form 1.997), Rule 1.100(c)(2).Reverse Mortgage Solutions, Inc. vs. Neil J. Gillespie, et al., Case No. 13-11

Dear Mr. Harrell:

You emailed me December 09, 2014 at 4:59 PM about the civil cover sheet -The case was designated as a commercial foreclosure by plaintiff's counsel cover sheet that the plaintiff is responsible for preparing and filing at the outcase. You will need to take the matter up with the court and/or the plaintiff hdeem appropriate if you dispute the plaintiff's characterization of the case, ashas no say in that.


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sheet is not filed, the clerk shall accept the complaint or petition for filing; b

proceedings in the action shall be abated until a properly executed cover shecompleted and filed. The clerk shall complete the civil cover sheet for a part pro se.

Currently the civil cover sheet (form 1.997) is not “properly executed” as cofiled. The Clerk has a ministerial duty under Rule 1.100(c)(2), “...all proceedaction shall be abated until a properly executed cover sheet is completed and

When can I expect the Clerk to fulfill its ministerial duties under Rule 1.100

16. Clerk Ellspermann violated the Clerk's Duties & Responsibilities found on i

http://www.marioncountyclerk.org/index.cfm?Pg=clerksdutiesresponsibiliti

The Clerk of Court, as an officer of the Marion County Court system, is resp

maintaining court records with the utmost care and security. These court reccriminal felony and misdemeanor cases, civil, family, probate and small clai proceedings, juvenile cases, and traffic citations.

Clerk Ellspermann failed in maintaining court records with the utmost care and secu

SANCTIONS: DISMISS THE FORECLOSURE WITH PREJUDICE

17. The Court has the inherent power to sanction perjury, misconduct and other

Plaintiff. A plain reading of section 57.105(1) Florida Statutes shows sanctions may

“upon the court’s initiative”.

18. I respectfully request the Court on its own initiative to DISMISS WITH PR

the Plaintiff’s VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY CON

MORTGAGE as a sanction imposed for perjury by Counsel Danielle N. Parsons, Es

Prior Counsel Danielle N. Parsons, Esq. - Officer of the CourtC t C l C ti Wil Offi f th C t


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justice, and, as such, his conduct is subject to judicial supervision and scruti

rel. Florida Bar v. Evans, 94 So.2d 730 (1957).

20. As attorneys, Parsons and Wilson must comply with the Rules of Profession

including candor before the tribunal, as described in the Florida Bar Informational P

Candor Before The Tribunal. “The lawyer's duty not to assist witnesses, including th

own client, in offering false evidence stems from the Rules of Professional Conduct

statutes, and caselaw.”

Rule 4-1.2(d) prohibits the lawyer from assisting a client in conduct that the knows or reasonably should know is criminal or fraudulent.

Rule 4-3.4(b) prohibits a lawyer from fabricating evidence or assisting a witfalsely.

Rule 4-8.4(a) prohibits the lawyer from violating the Rules of Professional Cknowingly assisting another to do so.

Rule 4-8.4(b) prohibits a lawyer from committing a criminal act that reflectsthe lawyer's honesty, trustworthiness, or fitness as a lawyer.

Rule 4-8.4(c) prohibits a lawyer from engaging in conduct involving dishone

deceit, or misrepresentation.

Rule 4-8.4(d) prohibits a lawyer from engaging in conduct that is prejudicialadministration of justice.

Rule 4-1.6(b) requires a lawyer to reveal information to the extent the lawye believes necessary to prevent a client from committing a crime.

This rule, 4-3.3(a)(2), requires a lawyer to reveal a material fact to the tribundisclosure is necessary to avoid assisting a criminal or fraudulent act by the 3.3(a)(4) prohibits a lawyer from offering false evidence and requires the law

bl di l h f l t i l id h b ff d


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21. Florida caselaw prohibits lawyers from presenting false testimony or eviden

Williams, 30 So. 2d 284 (Fla. 1947), states that perpetration of a fraud is outside the

professional duty of an attorney and no privilege attaches to communication betwee

and a client with respect to transactions constituting the making of a false claim or t

perpetration of a fraud. Dodd v. The Florida Bar, 118 So. 2d 17 (Fla. 1960), remind

courts are . . . dependent on members of the bar to . . . present the true facts of each

enable the judge or the jury to [decide the facts] to which the law may be applied. W

attorney . . . allows false testimony . . . [the attorney] . . . makes it impossible for the

justice] to balance." See The Fla. Bar v. Agar, 394 So. 2d 405 (Fla. 1981), and The

Simons, 391 So. 2d 684 (Fla. 1980). To permit or assist a client or other witness to t

is prohibited by F.S. § 837.02 which makes perjury in an official proceeding a felon

F.S. § 777.011 which proscribes aiding, abetting, or counseling commission of a fel

22. Oath of Admission to The Florida Bar. The general principles which should

the lawyer in the practice of the legal profession are clearly set forth in the followin

admission to the Bar, which the lawyer is sworn on admission to obey and for the w

violation to which disbarment may be had.

"I do solemnly swear:

"I will support the Constitution of the United States and the Constitution of tFlorida;


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"I will employ for the purpose of maintaining the causes confided to me suc

as are consistent with truth and honor, and will never seek to mislead the judany artifice or false statement of fact or law;

"I will maintain the confidence and preserve inviolate the secrets of my clienaccept no compensation in connection with their business except from them knowledge and approval;

"To opposing parties and their counsel, I pledge fairness, integrity, and civiliin court, but also in all written and oral communications;

"I will abstain from all offensive personality and advance no fact prejudicialor reputation of a party or witness, unless required by the justice of the causeI am charged;

"I will never reject, from any consideration personal to myself, the cause of t

defenseless or oppressed, or delay anyone's cause for lucre or malice. So hel

23. Creed Of Professionalism

I revere the law, the judicial system, and the legal profession and will at all t professional and private lives uphold the dignity and esteem of each.

I will further my profession's devotion to public service and to the public go

I will strictly adhere to the spirit as well as the letter of my profession's code

the extent that the law permits and will at all times be guided by a fundamenhonor, integrity, and fair play.

I will not knowingly misstate, distort, or improperly exaggerate any fact or owill not improperly permit my silence or inaction to mislead anyone.

I will conduct myself to assure the just, speedy and inexpensive determinatioaction and resolution of every controversy.

I will abstain from all rude, disruptive, disrespectful, and abusive behavior atimes act with dignity, decency, and courtesy.


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My word is my bond.

WHEREFORE, the Court has the inherent power to sanction perjury, miscon

other fraud by the Plaintiff. A plain reading of section 57.105(1) Florida Statutes sho

sanctions may be awarded “upon the court’s initiative”.

I respectfully move the Court on its own initiative to DISMISS WITH PREJ

the Plaintiff’s VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY CON

MORTGAGE as a sanction imposed for perjury by Counsel Danielle N. Parsons, Es

continued by Curtis Alan Wilson.

VERIFICATION OF NEIL J. GILLESPIE

Under penalty of perjury, I declare that I have read the foregoing, and the fa

therein are true and correct to the best of my knowledge and belief.

RESPECTFULLY SUBMITTED November 10, 2015.

Neil J. Gillespie8092 SW 115th LoopOcala, Florida 34481Phone: 352-854-7807

Email: [email protected]

Certificate of Service I hereby certify that today November 10, 2015 I serveforgoing to the following names on the Florida E-filing Portal.

Curtis Wilson a/k/a Curtis Alan Wilson

https://www.civitekflorida.com/ocrs/app/caseinformation.xhtml?query=CyTsX_QZPFTZAwa


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NewCase Information

422013CA000115CAA 01/09/2013 MARION Circuit Civil 37-D O

STANCIL, HALE R JUDGE

REVERSE

MORTGAGE

SOLUTIONS INC

PLAINTIFFWILSON, CURTIS

ALAN77669

GILLESPIE, NEIL J DEFENDANT

OAK RUN

HOMEOWNERS

ASSOCIATION

DEFENDANT

UNITED STATES

OF AMERICADEFENDANT

BAUERLE,

ELIZABETH

DEFENDANT

GILLESPIE, MARK DEFENDANT CAPARAS, TIFFANY 89863


DEVELOPMENT &

CONSTRUCTION

COR

DEFENDANT

GILLESPIE, JOETTA DEFENDANT



12/56

223 11/03/2015 AFFIDAVIT OF CONSTRUCTIVE SERVICE

218 06/18/2015 NOTICE OF FILING APPEAL TO FLORIDA SUPREME


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14/56


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https://www.floridabar.org/wps/portal/flbar/home/attysearch/mprofile/!ut/p/a1/jc_LDoIwEAXQT-pthRaWo6mkRazx


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Ethics Rules

Search The Florida Bar

THE FLORIDA BAR / Find A Lawyer / Profile

Member in Good Standing Eligible to Pra

Bar Number:Mail Add ress:

Email:

Personal Bar URL:

vCard:

County:

Circuit:

Admit ted:

Young Lawyers

Division:

10-Year Disc ipline

History:

Law School:

Firm:

Firm Size:

Firm Position:

Firm Website:

Curtis Alan Wilson

77669225 E Robinson St Ste 660

Orlando, FL 32801-4321

United States

Office: 407-674-1850 x2915

[email protected]

www.floridabar.org/mybarprofile/77669

Orange

9

04/20/2010

Member

None

Florida Coastal School of Law, 2009

Sections: Young Lawyers

Federal Courts: U.S. Court of Appeals for the Eleventh Circuit

U.S. District Court, Middle District of Florida

U.S. District Court, Northern District of Florida

McCalla Raymer, LLC.

51 to 100

Associate

www.McCallaRaymer.com

The Find a Lawyer directory is provided as a public serv ice. The Florida Bar maintains limited basic information about attorneys licensed to practice in the state (e

birth, gender, law schools attended, admission year). However, through this directory The Florida Bar allows individual attorneys the opportunity to pr ovide for pu

ABOUT THE BAR NEWS & EVENTS FOR THE PUBLIC MEMBER SERVICES LOG IN



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NewCase Information

422013CA000115CAA 01/09/2013 MARION Circuit Civil 37-D O

STANCIL, HALE R JUDGE

REVERSEMORTGAGE

SOLUTIONS INC

PLAINTIFFWILSON, CURTIS

ALAN77669


OAK RUN

HOMEOWNERS

ASSOCIATION

DEFENDANT

UNITED STATESOF AMERICA DEFENDANT

BAUERLE,

ELIZABETHDEFENDANT

GILLESPIE, MARK DEFENDANT CAPARAS, TIFFANY 89863


DEVELOPMENT &

CONSTRUCTIONCOR DEFENDANT

GILLESPIE, JOETTA DEFENDANT



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223 11/03/2015 AFFIDAVIT OF CONSTRUCTIVE SERVICE

218 06/18/2015 NOTICE OF FILING APPEAL TO FLORIDA SUPREME

216 06/17/2015 NOTICE OF FILING CORRECTED ORIGINAL TRANS217 06/17/2015 TRANSCRIPT CONT - SEE DOC

215 06/16/2015 NOTICE OF FILING CORRECTED ORIGINAL TRANS


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Form1.997CIVIL COVER SHEET

The civilcoversheetand theinformationcontainedhereinneitherreplacenorsupplementthe filingand servi

papers

as

required

by

law. Thisform s h ~ l I ~ b e . f i ~ d by the plaintifforpetitioner for theuse of theClerkof theC

reportingjudicialworkloaddata pursuani··t


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II. TYPE OF

C SE

(If the case

fits

more

than

one type

of

case, select the most definitive

descriptive label is a subcategory (is indented under

8

broader category

the main ~ t g o r y and subcategory boxes.

. 0... .

\

Condominium

Homestead residential foreclosure $0

Discrimination - employment

or

other Securities litigation

Insurance claims

Trade secrets

Intel1ectual property

Trust litigation

III. REMEDIES SOUGHT (check

all

that apply):

X monetary;

nonmonetary declaratory

or

injunctive relief;

punitive

IV

NUMBER OF CAUSES OF ACTION

[

(specify)

IS

THIS

CASE A

CL SS

CTION

LAWSUIT?

yes

X

no

VI HAS

NOTICE

OF ANY KNOWN RELATED CASES BEEN

FILED?

X no

yes

If

"yes," list all related cases by name, case number,

and court.

VII.

IS

JURY TRIAL DEMANDED IN COMPLAINT?

yes

X no

Signatu

d

in

this cover sheet is accurate to the best of

my

knowledge and

la.

Bar# 0029364

Attorney or party

(Bar

#

if

attorney)

Danielle N. Parsons


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VIA Email [email protected] Decembe

Gregory C. Harrell

General Counsel to David R. EllspermannMarion County Clerk of Court & Comptroller

Ocala, Florida 34475

RE: Clerk’s duty and the civil cover sheet (form 1.997), Rule 1.100(c)(2).

Reverse Mortgage Solutions, Inc. vs. Neil J. Gillespie, et al., Case No. 13-11

Dear Mr. Harrell:

You emailed me December 09, 2014 at 4:59 PM about the civil cover sheet (form 1

-The case was designated as a commercial foreclosure by plaintiff's counsel

cover sheet that the plaintiff is responsible for preparing and filing at the out

case. You will need to take the matter up with the court and/or the plaintiff h

deem appropriate if you dispute the plaintiff's characterization of the case, as

has no say in that.

Mr. Harrell, under Rule 1.100(c)(2) “...all proceedings in the action shall be abated

properly executed cover sheet is completed and filed...”. This is the Clerk’s duty, se

Rule 1.100(c)(2) Pleadings and Motions.

(2) A civil cover sheet (form 1.997) shall be completed and filed with the cl

time an initial complaint or petition is filed by the party initiating the action.

sheet is not filed, the clerk shall accept the complaint or petition for filing; b

proceedings in the action shall be abated until a properly executed cover she

completed and filed. The clerk shall complete the civil cover sheet for a part

pro se.

Currently the civil cover sheet (form 1.997) is not “properly executed” as completed

The Clerk has a ministerial duty under Rule 1.100(c)(2), “...all proceedings in the ac

abated until a properly executed cover sheet is completed and filed.”.

When can I expect the Clerk to fulfill its ministerial duties under Rule 1.100(c)(2)?

Sincerely,


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RULE 1.100 FLORIDA RULES OF CIVIL PROCEDURE

such; an answer to a crossclaim if the answer containsa crossclaim; a third-party complaint if a person who

was not an original party is summoned as a third-party

defendant; and a third-party answer if a third-party

complaint is served. If an answer or third-party an-

swer contains an afrmative defense and the opposing

party seeks to avoid it, the opposing party shall le

a reply containing the avoidance. No other pleadings

shall be allowed.

(b) Motions. An application to the court for an or-

der shall be by motion which shall be made in writing

unless made during a hearing or trial, shall state with

particularity the grounds therefor, and shall set forth

the relief or order sought. The requirement of writing

is fullled if the motion is stated in a written notice of

the hearing of the motion. All notices of hearing shall

specify each motion or other matter to be heard.

(c) Caption.

(1) Every pleading, motion, order, judgment, or

other paper shall have a caption containing the name

of the court, the le number, the name of the rst party

on each side with an appropriate indication of other

parties, and a designation identifying the party ling

it and its nature or the nature of the order, as the case

may be. All papers led in the action shall be styled insuch a manner as to indicate clearly the subject mat-

ter of the paper and the party requesting or obtaining

relief.1

(2) A civil cover sheet (form 1.997) shall be com-

pleted and led with the clerk at the time an initial

complaint or petition is led by the party initiating the

action. If the cover sheet is not led, the clerk shall

accept the complaint or petition for ling; but all pro -ceedings in the action shall be abated until a properly

executed cover sheet is completed and led. The clerk

shall complete the civil cover sheet for a party appear-

ing pro se.

(3) A nal disposition form (form 1 998) shall be

The clerk shall complete the nal dispoa party appearing pro se, or when the

missed by court order for lack of prosec

to rule 1.420(e).

(d) Motion in Lieu of Scire Facia

available by scire facias may be grant

after notice without the issuance of a

facias.

1.E.g., “Order Denying Plaintiff’s Motion for

ment,” “Defendant’s Motion to Compel,” “Orde

dant’s Motion to Dismiss,” “Final Judgment for P

Committee Notes

1971 Amendment. The change requires a mor

nation of the document that is led so that it may

identied. It also species the applicability of the

of the various documents that can be led. For exa

dismiss should now be entitled “defendant’s mot

complaint” rather than merely “motion” or “moti

1972 Amendment. Subdivision (a) is amende

mandatory when a party seeks to avoid an afrm

an answer or third-party answer. It is intended to

the problems exemplied by Tuggle v. Maddox, 6

1952), and Dickerson v. Orange State Oil Co., 12

2d DCA 1960).

1992 Amendment. Subdivision (b) is amendnotices of hearing to specify the motions or ot

heard.

RULE 1.110. GENERAL RULES O

PLEADING

(a) Forms of Pleadings. Forms of ac

nical forms for seeking relief and of ple

or motions are abolished.

(b) Claims for Relief. A pleading w

a claim for relief, whether an original c

claim, crossclaim, or third-party claim

cause of action and shall contain (1) a s

Filing # 23275828 E-Filed 02/03/2015 01:25:45 AM


25/56

THIS IS NOT A COMMERCIAL FORCLOSURE IN THE CIRCUIT COU

FIFTH JUDICIAL CIR

IN AND FOR MARIONREVERSE MORTGAGE SOLUTIONS, INC.,

CASE NO.: 2013-CA-0

Plaintiff, 42-2013-CA-000115-A

vs. Residential Home For

Florida Homestead of N

NEIL J. GILLESPIE AND MARK GILLESPIE

AS CO-TRUSTEES OF THE GILLESPIEFAMILY LIVING TRUST AGREEMENT

DATED FEBRUARY 10, 1997, ET AL.

Defendants.

________________________________________/

DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLO

HOME EQUITY CONVERSION MORTGAGE (HECM); DEFENSES AND CRECOUPMENT; OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-

Defendants Neil J. Gillespie, individually, and as former Trustee (F.S. Ch. 7

of the terminated Gillespie Family Living Trust Agreement Dated February 10, 199

(“Terminated Trust”), a person with disabilities, indigent, denied counsel appointme

reluctantly appearing pro se, answers the Plaintiff’s Verified Complaint To Foreclos

Equity Conversion Mortgage (HECM) (“Verified Complaint”, “HECM”, and/or “re

mortgage”), demand trial by jury, and allege:

1. As to paragraph 1 of the Verified Complaint, Defendants deny the allegationreverse mortgage is a non-recourse loan and the lender has no further means to colle

2. As to paragraph 2 of the Verified Complaint, Defendants deny the allegatio

reverse mortgage is a non-recourse loan and the lender has no further means to colle

There nothing is attached to the Verified Complaint as Exhibits "A" and "B " respec


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DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLOSE

HOME EQUITY CONVERSION MORTGAGE (HECM); DEFENSES AND CLAIMS IN RECOU

OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLAIMS


is attached to the Verified Complaint as Composite Exhibit "C." A HECM reverse m

non-recourse loan and the lender has no further means to collect the debt.

4. As to paragraph 4 of the Verified Complaint, Defendants deny the allegation


5. As to paragraph 5 of the Verified Complaint, Defendants admit the allegatio

month the Plaintiff sends a monthly statement to Penelope Gillespie, see attached. T

sued the wrong party. A HECM foreclosure must commence within 6 months. 24 C206.125(d)(1). Bank of America gave notice October 5, 2009 the mortgage was due

The Plaintiff did not foreclose until January 9, 2013. The time has expired, even und

A HECM reverse mortgage is a non-recourse loan and the lender has no further mea

the debt.



The property is the principal residence of me, Neil J. Gillespie, my homestead propeexempt from levy and execution under Section 4, Article X of the Florida State Con



The Plaintiff filed notice of lis pendens on or about January 9, 2013. Validity of a n

pendens is one year from filing. § 48.23(2), Fla. Stat. (2013). The Plaintiff failed to

pendens and it is not valid. Pursuant to my authority as Trustee of the Trust, and act

capacity, I transferred the property to the beneficiary, myself, on January 14, 2015.

my authority as Trustee of the Trust, and acting in that capacity, I terminated the Tr

provided by Fla. Stat. § 736.0414, and Article V, the Trust.






11 As to paragraph 11 of the Verified Complaint Defendants are without know

A S’ A S O CO A O O C OS


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13. As to paragraph 13 of the Verified Complaint, Defendants are without know

therefore deny the allegations. A HECM reverse mortgage is a non-recourse loan an

has no further means to collect the debt.


record shows the Plaintiff failed to effectuate service of process on Defendant, NEIL

GILLESPIE AND MARK GILLESPIE AS CO-TRUSTEES OF THE GILLESPIE

LIVING TRUST AGREEMENT DATED FEBRUARY 10,1997, which is not a pro

Pursuant to my authority as Trustee of the Trust, and acting in that capacity, I termin

Trust as provided by Fla. Stat. § 736.0414, and Article V, the Trust. A HECM reveris a non-recourse loan and the lender has no further means to collect the debt.



information and belief, the Plaintiff failed to follow the procedure for constructive s

process, and appointment of guardian ad litem for UNKNOWN SPOUSE OF ELIZA

BAUERLE. A HECM reverse mortgage is a non-recourse loan and the lender has nomeans to collect the debt.

17. As to paragraph 17 of the Verified Complaint, Defendants are without know

therefore deny the allegations. A HECM reverse mortgage is a non-recourse loan an

has no further means to collect the debt.


record shows the Plaintiff failed to effectuate service of process on UNKNOWN TE

POSSESSION 1 and UNKNOWN TENANT IN POSSESSION 2. A HECM reverse

a non-recourse loan and the lender has no further means to collect the debt.


an improper party. A HECM reverse mortgage is a non-recourse loan and the lender

further means to collect the debt.







28/56




UNKNOWN TRUSTEES, SETTLERS AND BENEFICIARIES OF UNKNOWN

SETTLERS/BENEFICIARIES OF THE GILLESPIE FAMILY LIVING TRUST A

DATED FEBRUARY 10, 1997.” Pursuant to my authority as Trustee of the Trust, a

that capacity, I terminated the Trust as provided by Fla. Stat. § 736.0414, and Articl

Trust. A HECM reverse mortgage is a non-recourse loan and the lender has no furth

collect the debt.



The Plaintiff filed notice of lis pendens on or about January 9, 2013. Validity of a n pendens is one year from filing. § 48.23(2), Fla. Stat. (2013). The Plaintiff failed to

pendens and it is not valid. Pursuant to my authority as Trustee of the Trust, and act

capacity, I transferred the property to the beneficiary, myself, on January 14, 2015.

my authority as Trustee of the Trust, and acting in that capacity, I terminated the Tr

provided by Fla. Stat. § 736.0414, and Article V, the Trust.

DEFENDANTS’ DEFENSES AND CLAIMS IN RECOUPMENT, Sec. 673.305

See the AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS

RECOUPMENT, Section 673.4051(1)(a), Fla. Stat. lack of legal capacity of the bor

Section 673.3051, Florida Statutes, provides for defenses and claims in reco

Subpart (1)(a)2. provides a defense for "lack of legal capacity, or illegality o

transaction which, under other law, nullifies the obligation of the obligor;"

3. Fraud that induced the obligor to sign the instrument with neither knowled

reasonable opportunity to learn of its character or its essential terms; or

Defendants hereby assert under Fla. Stat. § 673.3051 all Defenses and claims in rec

DEFENDANTS’ OTHER DEFENSES

A HECM reverse mortgage is a non-recourse loan and the lender has no further meathe debt. The Plaintiff filed notice of lis pendens on or about January 9, 2013. Valid

notice of lis pendens is one year from filing. § 48.23(2), Fla. Stat. (2013). The Plain

renew the lis pendens and it is not valid. Pursuant to my authority as Trustee of the

acting in that capacity, I transferred the property to the beneficiary, myself, on Janu

Pursuant to my authority as Trustee of the Trust and acting in that capacity I termin



29/56

DEFENDANTS ANSWER TO VERIFIED COMPLAINT TO FORECLOSE



commence within 6 months. 24 C.F.R. § 206.125(d)(1). Bank of America gave noti

2009 the mortgage was due and payable. The Plaintiff did not foreclose until Januar

The time has expired, even under Fla. law. A HECM reverse mortgage is a non-reco

and the lender has no further means to collect the debt.

Statute of Limitations. A HECM foreclosure must commence within 6 months. 24 C

206.125(d)(1). Bank of America gave notice October 5, 2009 the mortgage was due

The Plaintiff did not foreclose until January 9, 2013. The time has expired, even und

A HECM reverse mortgage is a non-recourse loan and the lender has no further mea

the debt.

DEFENDANTS’ COUNTER-CLAIMS

The Plaintiff failed to effectuate service on the Defendants, therefore this Court doe

lawful jurisdiction over the Defendants, thus the Defendants’ counter-claims agains

will be brought by a separate action.

DEFENDANTS’ CROSS-CLAIMS

The Plaintiff failed to effectuate service on the Defendants, therefore this Court doe

lawful jurisdiction over the Defendants, thus the Defendants’ cross-claims will be b

against Counter Parties by a separate action.

RESPECTFULLY SUBMITTED February 2, 2015. CORRECTED Feb-03-2015

Neil J. Gillespie, individually, and former Trustee, F.S. Ch. 736 Part III, of the Term

8092 SW 115th Loop


Phone: 352-854-7807



30/56

Amended Certificate of Service

CORRECTED Feb-03-2015

I Hereby Certify that I provided February 2, 2015 CORRECTED Feb-03-20

DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLOSE HOM

CONVERSION MORTGAGE (HECM); DEFENSES AND CLAIMS IN RECOUP

OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLAIMS through the F

Filing Portal to names on the service list.

Mr. Curtis Wilson, Esq. Ms. Colleen Murphy Davis, AU

McCalla Raymer, LLC 400 N. Tampa Street, Suite 320225 E. Robinson Street, Ste. 660 Tampa, FL 33602

Orlando, FL 32801 Email: USAFLM.State.Foreclo

Email: [email protected] [email protected]

USAFLM.HUD.Disclaimers@

Oak Run Homeowners Association, Inc. Development & Construction Corporat

Registered Agent Paul Pike c/o Carol Olson, Vice President of Adm

11665 SW 72ND CIRCLE and Secretary-Treasurer, for RA PriyaOCALA, FL 34476 10983 SW 89 Avenue

c/o ORHA President Ocala, FL 34481

Email: [email protected] Email: [email protected]

Neil J. Gillespie and Mark Gillespie as Co-Trustees of the Gillespie Family Living

Agreement dated February 10, 1997

8092 SW 115th Loop

Ocala, FL 34481



Neil J. Gillespie Mark Gillespie

8092 SW 115th Loop 7504 Summer Meadows Drive

Ocala, FL 34481 Ft. Worth, TX 76123


Unknown spouse of Mark Gillespie n/k/a Joetta Gillespie

7504 Summer Meadows Drive

Ft. Worth, TX 76123

Email: mark gillespie@att net


31/56

Elizabeth Bauerle n/k/a Elizabeth Bidwood Unknown spouse of Elizabeth B

7504 Summer Meadow Drive 6356 SW 106th Place

Ft. Worth, TX 76123 Ocala, FL 34476


NOTE: Plaintiff’s Counsel,

Danielle Nicole Parsons (FL Bar ID 29364),

Curtis Allen Wislon (FL Bar ID 77669), and,McCalla Raymer, LLC, a Foreign Limited Liability Company (Geor

(collectively “McCalla Raymer”)

failed to follow the procedure for constructive service of process for Unknown Settl

/Beneficiaries of The Gillespie Family Living Trust Agreement dated February 10,

other unknown parties, and failed to move the Court for appointment of a representa

unknown parties. Judge Stancil stated in open court December 18, 2014 that only a

represent a trust, but no lawyer was appointed to represent the unknown parties, or o

RESPECTFULLY SUBMITTED February 2, 2015. CORRECTED Feb-03-

NEIL J. GILLESPIE, individually, and as former trustee, F.S. Ch. 736 Part I

8092 SW 115th LoopOcala, Florida 34481

Phone: 352-854-7807



32/56

RMS'"

Reverse Mortgage Solutions, Inc

Statement Date: J

5010 Unbar Drive, Suite 100

Nashville,

TN

37211

Year

Ending: Dec

Monthly

Statement

5618

PENELOPE M GILLESPIE

8092 SW 115TH LOOP

OCALA, FL 34481

***

THIS IS NOT A

BILL

***

Account Information

Pay Plan Type:

Funded Date:

Loan

:

Borrower:

Property:

Line of Credit

06/16/2008

68011002615899

PENELOPE M GILLESPIE

8092 SW 115TH LOOP

OCALA, FL 34481

Interest Rates

Interest Rate Type: Monthly (1-Yr CMT)

Month Index Margin Int. Rate

(Index+Margin)

December: 0.110°A> 1.500°A> 1.610°A>

January: 0.140°A> 1.500°A> 1.640°A>

February (**) 0.270°A> 1.500%

1.770°A>

Your Reverse Mortgage loan has a variable-rate feature; the monthly and

daily periodic rates may vary

as a

result. Please refer to important

informatIon found on the back of this monthly statement and on the

additional page.

. Credit Line Set Aside Informat

Original Credit Line:

Current Gross Credit Line:

Unsch. Credit Line Disb. Bal. (-):

Net Credit Line Set Aside (=):

* Modified Term

or

Modified

Principal Limit Information

Original Principal Limit

Current Principal Limit:

Loan Balance (-):

Servicing Fee Set Aside (-):

Repair Set Aside (-):

First Year Set Aside (-):

Credit Line Set Aside (-):

Net Principal Limit (=):

Interest Rate Information:

ANNUAL PERCENTAGE RATE (APR): 2.424°'c»

Loan Periodic Rates: Mortgage Insurance Premium (MIP) Periodic Rates:

Interest (F

IMonthly Periodic Rate on

IAPPlicable Principal Balance:

MIP Monthly Periodic Rate on Applicable

0.1340A> Principal Balance:

Periodic

Finance C

Daily Periodic Rate on

MIP Daily Periodic Rate on Applicable

Applicable Advances or

0.004

0

A

Advances or Payments:

~ ~ y m n t s

Corresponding APR:

1.610°A>

Corresponding APR:

Notice

of

Changes in

your

Interest Rate on

your

Adjust able Rate Reverse Mortgage

On February 01, 2015, the interest rate on your adjustable-rate Reverse Mor tgage will increase from 1.640°A> to 1.

interest rate was based on an index value of 0.140°A>. To determine your new interest rate, we added the current in

.:fI .


33/56

RMS'" Reverse

Mortgage

Solutions Inc

Statement

Date:


Nashville,

TN 37211

Year

Ending: De

Loan Balance

ctivity

Current Month

114,592.56

revious Loan Balance

0.00

oan

Advance

I

Scheduled Payment (if applicable):

0.00

oan Advance / Unscheduled Disbursements (if applicable):

0.00

epair Set Aside Disbursements:

0.00

axes Paid:

Insurance Paid:

0.00

0.00

ther Property Charges:

153.75

nterest (Finance Charge):

MIP (Finance Charge): paid to HUD:

47.75

Monthly Servicing Fee (Finance Charge): 30.00

0.00

hange of Plan Fee/Misc. (Finance Charge):

0.00

'

:

Transaction Intll'c>rmatic>n):

otal Balance ity:

Closing Loan Balance as of December

31,2014 114,824.06

* Corporate Advance (not part of Loan Balance):

197.50

Transaction Information

Transaction Effective Transaction Description

Date Date

12/31/2014 12/31/2014

Monthly Interest, MIP Accrual

&

SF

12/29/2014 12/29/2014 Corp Adv - S306 - Other

12/19/2014 12/19/2014 Corp Adv - Prop Preserve - Prop

Inspect

12/05/2014 12/05/2014 Corp Adv - Prop Preserve - Prop

Inspect

Grand Total:

Principa.1 Interest

MIP Servicing

Advances Fee

Ad

0.00 153.75 47.75

30.00

0.00 0.00 0.00 0.00

0.00

0.00 0.00 0.00

0.00

0.00 0.00 0.00

0.00

153.75 47.75 30.00


34/56

R

t5' Reverse

Mortgage Solutions

Inc

Statement

Date:

J

5010 Linbar Drive, Suite 100

Nashville, TN

37211

Year Ending: Dec

A.

ANNUAL

PERCENTAGE RATE (APR)

The ANNUAL PERCENTAGE RATE for the interest portion

of

your FINANCE CHARGE may increase or decrease annually ba

("Index"). Therefore, the monthly and daily periodic rates relating to the interest portion

of

your FINANCE CHARGE may vary. T

PERCENTAGE RATE that will apply to your Account,

we

add a margin to the value

of

the Index, subject to certain rate limitatio

Reverse Mortgage Note.

The corresponding annual percentage rate for the interest portion

of

the FINANCE CHARGE does not include costs other than

ANNUAL PERCENTAGE RATE includes interest and all other FINANCE

CHARGES

that relate to your loan.

B. FINANCE CHARGES

Each advance or payment made to you or on your behalf under your Reverse Mortgage will be subject to a FINANCE CHARG

each advance

or

payment is made. A FINANCE CHARGE will continue to be assessed on your Reverse Mortgage until the en

all fees due under the Notes, Security Instruments and Loan Agreement are paid.

C.INTEREST

The interest portion of the FINANCE CHARGE on your Account is computed by (i) calculating the FINANCE CHARGE on

beginning

of

each month, which includes any payments

or

credits applied to your loan during the previous month, (ii) calculatin

each advance, payment

or

credit made to you

or

on your behalf during the month, and then (iii) adding all

of

these sums togethe

We start with the outstanding principal balance on your Account at the beginning

of

each month, which includes FINANCE

month (the "Previous Loan Balance"). At the end

of

each month, we multiply the Previous Loan Balance by the then-current AN

divided by 12 (the "Monthly Periodic Rate").

At the end

of

each month

in

which any advances (also known as disbursements and labeled as "Disb" on this statement)

or

p

you or on your behalf, we multiply the amount

of

the advance or payment by the number

of

days remaining in the month after

made (not including the day the advance was made) and then multiply this amount by the then-current ANNUAL PERCENTAG

"Daily Periodic Rate"). This calculation is repeated for each advance

or

payment made to you

or

on your behalf during the mont

The sum

of

the final result

of

these calculations equals the interest portion of your FINANCE CHARGE for the month.

D. MORTGAGE INSURANCE PREMIUMS (MIP)

In

addition, mortgage insurance premiums ("MIP"), which are a FINANCE CHARGE, are computed by as follows:

At the end

of

each month, we multiply the lesser

of

the Previous Loan Balance

or

the maximum balance on which HUD require

MIP rate divided by 12 (the "MIP Monthly Period Rate"). At the end

of

each month

in

which any advances (also known as d

"Disb" on this statement) or payments have been made to you or on your behalf, we multiply the amount of the advance

or

pay

or payment that exceeds the maximum advances

or

payments on which HUD requires MIP to be paid) by the number

of

days

that advance or payment was made (not including the

day

the advance was made),and then multiply this amount by your MIP

Daily Periodic Rate"). This calculation is repeated for each advance or payment made to you or on your behalf during the month

The sum of the final result of these calculations equals the mortgage insurance portion

of

your FINANCE CHARGE for the mon

E. CALCULATION

OF

BALANCES

The "Principal Limit Information" section on the front

of

the monthly statement shows your "Original Principal Limit" and you

includes any "Set Asides". The "Loan Balance" section on page 2

of

this monthly statement shows your prior month's Prev

current month's Closing Loan Balance, which includes the current month's activity. If you would like to determine your payof

questions on this monthly statement, please call the telephone number listed on the bottom

of

this monthly statement.

F.

OTHER INFORMATION

We compute the interest and other fees assessed on your loan monthly. This information is available on page 2

of

this monthl

monthly statement indicates both the current month and year to date interest and other fees.

If

you repay all or a portion of you

interest paid due to a repayment exceeds $600, a separate IRS Form 1098 will be mailed to you by January 31 st. Interest ac

repayments, will not be reported to the IRS until the loan is paid

in

full.

G. BILLING RIGHTS SUMMARY


35/56

At

' Reverse

Mortgage Solutions Inc

Statement Date:


Year

EndinQ: De

Nashville, TN

37211

We will acknowledge your letter within 30 days. Within 90 days, we will either correct the er ror or explain why we believe the

If we determine the monthly statement was not correct, we will credit the disputed amount along with any associated interest

investigation, you will continue to see the disputed amount on your monthly statement; however, you do not have to pay any

charges that apply to it

Even though payments are not required on a reverse mortgage, by law, you are still required to meet

your Notes, Security Instruments and Loan Agreement. This includes paying your property taxes and insurance premiums.

H

CREDIT INFORM TION

Regular monthly installment payments are not required

on

this loan unless you have a repayment plan for a delinquent a

obligation to pay your property taxes and insurance premiums. The loan must be repaid

in

full

in

one payment if your

Payable . Payments may be made by check, money order or wired funds, payable

in

U.S. Dollars.

Do

not send cash. P

address listed on the bottom

of

this monthly statement. Payments are allocated as described in your Note.

~ ; : ~ 1 1 J ~ : ' : ~ IlIi; :,li ~ : . : a ~ : : ~ f I I ~ ; . , : ~ 1 I J ~ : ' : : ~

III


36/56

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= = ~ = = = = = =

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~ = : : : = : : : = : : : = ; ; : = : : : = : : : = : : : :

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IJ


37/56

Termination of the Gillespie Family Living Trust Agreement Dated February 10

STATE OF FLORIDA )

) SS.:

COUNTY OF MARION )

AFFIDAVIT

BEFORE ME this day personally appeared NEIL

J.

GILLESPIE, who upon b

sworn deposed upon oath as follows:

1.

My name is Neil J. Gillespie. I am over eighteen years

of

age. This affidavit is

personal knowledge unless otherwise expressly stated.

2.

I am sole Trustee of the Gillespie Family Living Trust Agreement Dated Febru

1997 (hereinafter Trust ).

3. My Florida residential homestead property is the sole asset

of

the Trust, proper

8092 SW 115th Loop, Ocala, Florida 34481, Marion County, Florida, (the property )

have lived in the property continuously and uninterruptedly since February 9, 2005, T

7013-007-001, legal description:

Lot(s)

1

Block G, OAK RUN WOODSIDE TRACT, according to the Plat the

recorded in Plat Book 2 at Page(s) 106 through 112, inclusive of the Public Re

Marion County, Florida.

4. Pursuant to my authority as Trustee of the Trust, and acting in that capacity, I t

the remaining trust property to the beneficiary, myself, on January 14,2015.

5. Pursuant to my authority as Trustee of the Trust, and acting in that capacity, I h

terminate the Trust as provided by Fla. Stat. § 736.0414, and Article V, the Trust. The


38/56

having a total value less than 50,000 may terminate the trust

if

the trustee concludes

value

of

the trust property is insufficient to justify the cost

of

administration.

FURTHER AFFIANT SAYETH NOT,

The foregoing instrument was acknowledged before me, this 2nd day

of

Febru

FL-bL

Sl

by Neil J. Gillespie, who is personally known to me, or who has produced .

identification and states that he is the person who made this affidavit and that its conte

truthful to the best

of

his knowledge, information and belief.

of

Notary Public

(SEAL)

Notary Public

State

of Florida

Angelica Cruz

y

Commission EE067986

Expires

02127 2015

My Commission Expires: - - - - . 2 J _ 2 , _ : . r ~ , _ S _


39/56

THIS

IS

NOT

A COMMERCIAL

FORCLOSURE

IN THE CIRCUIT COUR

FIFTH JUDICIAL CIRC

IN AND FOR MARION

REVERSE MORTGAGE SOLUTIONS, INC.,

CASE NO.: 2013-CA-00

Plaintiff,

42-2013-CA-000115-AX

vs.

Residential Home Forec

Florida Homestead

of

Ne

NEIL J. GILLESPIE AND MARK GILLESPIE

AS CO-TRUSTEES OF THE GILLESPIE

FAMILY LIVING TRUST AGREEMENT

DATED FEBRUARY 10,1997, ET AL.

Defendants.

AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOU

Section 673.4051(1)(a), Fla. Stat. lack

of

legal capacity

of

the borrower

STATE OF FLORIDA )

) SS.:

COUNTY OF MARION )

AFFIDAVIT

BEFORE ME, this day personally appeared NEIL J. GILLESPIE, who upon

sworn deposed upon oath as follows:

1.

My name is Neil J. Gillespie. I am over eighteen years of age. This affidavit is

personal knowledge unless otherwise expressly stated.

2. I have resided at 8092 SW 115th Loop, Ocala, Marion County, Florida ("the p

continuously and uninterruptedly since February 9, 2005. On November 17, 2009 I ap

and received the homestead tax exemption as to the property, that 7013-007-001 is th

AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT


40/56

Section 673.4051(1)(a), Fla. Stat. lack of legal capacity of the borrower

3. The Plaintiffs Verified Complaint To Foreclose Home Equity Conversion M

alleges at paragraph

4:

Plaintiff is entitled to enforce the Note and Mortgage, pursuant to F.S.

§

673.

owner and holder

of

an instrument.

4.

Section 673.3051, Florida Statutes, provides for defenses and claims in recou

Subpart (1)(a)2. provides a defense for "lack

of

legal capacity, or illegality

of

the tran

which, under other law, nullifies the obligation of the obligor;"

Section 673.3051, Florida Statutes, defenses and claims in recoupment.

(1) Except as stated in subsection (2), the right to enforce the obligation

of

a p

an instrument

is

subject to:

(a) A defense of the obligor based on:

2. Duress, lack

of

legal capacity, or illegality

of

the transaction which, under

nullifies the obligation of the obligor;

5.

I am the eldest son ofPenelope Marie Gillespie who died September 16, 2009

6.

The death certificate for Ms. G-illespie issued September 23, 2009 for the state

shows dementia was the immediate cause

of

death. No other cause of death is shown

7. Ms. Gillespie lacked capacity individually on June 5, 2008 to make any finan

decisions due to Alzheimer's disease and/or dementia.

8.

Ms. Gillespie lacked capacity as Grantor Trustee on June 5 2008 to manage o

contract the Gillespie Family Living Trust Agreement Dated February 10, 1997, due

Alzheimer's disease and/or dementia.

9. Guardianship in Florida is governed by Chapter 744 Florida Statutes. o guar

AFFIDAVIT O NEIL

J.

GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT


41/56

Section 673.4051 (1)(a), Fla. Stat. lack of legal capacity of the borrower

11. Ms. Gillespie was a patient ofDr. Gregory J. Howell, M.D., Neurologist, Oca

Neurodiagnostic Center, Windsor Oaks Medical Park, Bldg 400,

1901

S.E. 18th Ave

Florida 34471, Noverrlber 1,2005 through the close of his practice December 12,200

12. On May

8

2006 Dr. Howell wrote to Dr. Christopher Grainger, Ms. Gillespie

care doctor, that she was being treated for Alzheimer's dementia, and she was not com

make any financial decisions:

"I have been treating the patient for Alzheimer's dementia..." and "It is my im

that the patient has moderate Alzheimer's and

is

not competent to give things

make any financial decisions..."

The letter ofDr. Howell dated May

8

2006

is

attached.

13.

On September 4, 2008 Dr. Jay

J.

Rubin, M.D wrote to Dr. Granger about Ms.

participation

in

a research study. Dr. Rubin diagnosed Ms. Gillespie with moderate d

consistent with Alzheimer's disease, currently treated with Aricept and Namenda. Dr.

his Neurological Examination that "She

is

disoriented and certainly confused." The le

14.

A

Home Equity Conversion Mortgage

or HECM,

is

a Federal Housing Admi

(FHA) "reverse" mortgage program administered by the Secretary, United States Dep

Housing and Urban Development (Secretary or HUD) to enable home owners over 62

access the subject home's equity. A HECM reverse mortgage

is

governed by federal l

12

U.S.C.

§

1715z-20 - Insurance

of

home equity conversion mortgages for el

homeowners; and 24 CFR Part 206 - Home Equity Conversion Mortgage Insu

15.

A HECM reverse mortgage

is

a non-recourse loan, and the lender has no furth

AFFIDAVIT O NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT


42/56

Section 673.4051(1)(a), Fla. Stat. lack of legal capacity of the borrower

16.

On April 22, 2008 I attended a telephonic HECM counseling session with Ms

and Susan Gray, a HUD approved HECM counselor. The counseling session did not

with HECM rules. Ms. Gillespie was not able to answer questions showing she under

reverse mortgage. A transcript

of

the counseling session shows Ms. Gillespie did not

participate in the call or the counseling. Ms. Gray did not ask Ms. Gillespie to "succe

answer five

of

the ten review questions" or make other effort to determine

if

she unde

basic information about reverse mortgages, which was impossible due to Alzheimer's

but required under

12

USC

§

1715z-20(f) Counseling services and information for m

Therefore Ms. Gray should not have issued the certificate to Ms. Gillespie, but she di

17.

Ms. Gillespie had Alzheimer's disease and dementia and lacked capacity at th

the HECM counseling session April 22, 2008. Ms. Gillespie lacked capacity at the tim

HECM loan closing June 5, 2008. Elizabeth "Liz" Baize

of

the Ocala office

of

The Pa

Bank was the HECM loan originator. I told Ms. Baize that Penelope Gillespie had Al

disease early

in

the origination process. Ms. Baize's only concern was whether a guar

was in place for Ms. Gillespie. There was no guardianship.

18.

Liz Baize did not require anyone to act as power

of

attorney for Ms. Gillespie

the bank had me and Mark Gillespie added to the quit-claim deed along with Ms. G-ill

required us all to sign the HECM Notes and HECM Mortgages. When the HECM clo

2008, Penelope Gillespie age 77 was the only person age 62 or older qualified to be a

borrower. I was age 52. Mark Gillespie was age 49.

AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT


43/56

Section 673.4051(1)(a), Fla. Stat. lack of legal capacity

of

the borrower

20. At all times pertinent to this HECM, the lender and lender parties knew

or

sh

known Ms. Gillespie was not competent and suffered from Alzheimer's disease and d

21. Charles J. Thomas, a New York Supreme Court Judge, voided a reverse mort

subsequent refinancing on the grounds that the borrower's mental illness made her un

understand the reverse mortgage. The Order and a related news story are attached.

Matter

of

Doar (Brunson) 2009 NY Slip Op 29549 [28 Misc 3d 759] Decemb

Thomas, J. Supreme Court, Queens County Published by New York State La

Bureau pursuant to Judiciary Law § 431. As corrected through Thursday, Oct

Appellate Division continued to require that a mortgagee have knowledge of

mortgagor's incapacity before the contract which is otherwise voidable could

In order to void a contract which is voidable because of incapacity, the mortg

establish that the mortgagee had knowledge of the incapacity and were n

mortgagees for value. (See Weisberg v DeMeo, 254 AD2d 351, 351 [1998].)

Under these circumstances, the court finds that Hermina Brunson was incapab

understanding the agreements that she signed on April 21, 2003 and that Fina

Freedom is charged with the responsibility to determine, and was in a position

her incapacity. Therefore, the court finds the mortgages on June 20, 2003 void

22. Therefore this HECM is void or voidable because the mortgagee had knowled

incapacity and were not bona fide mortgagees for value.

FURTHER AFFIANT SAYETH NOT,

The foregoing instrument was acknowledged before me, this 2nd day

of

Febru

by Neil J. Gillespie, who is personally known to me,

or

who has produced

identification and states that he is the person who made this affidavit and that its cont

truthful to the best

of

his knowledge, information and belief.


44/56

OCALA

NEURODIAGNOSTIC

CENT·ER

Windsor Oaks Medical Park

1901 S.E. 8th Avenue Bldg 400


Tel

(352) 732-7095

Fax (352) 732-0477

Jose Gaudier, M.D.

Wnliam

GaY't

M.D.

Ken

NS,

M.D.

Gregory

Howell

M.D.

Diplomate•• A

Psychla

May

8

1

2006

h r i ~ t o p h r Grainger.

M.D.

4600

SW

46th Court. 8te. 310

Ocala.

FL

34474

RE: Penelope

Gillespie

73008

Dear

Dr.

Grainger:

I last saw Ms. Gillespie in

February. I

have since received notffication from her

son

who

takes

lives with her

that

she had

contributed 40,000 towards

a

mortgage to purchase a share in

a

res

money was gone and the

restaurant

closed. This

involved

one

of

the patient s

children, a daught

also apparently

gave

several

paintings

to the

daughter

and

they

were not famny portraits

or

heir

were worth around 20.000. The

patient herself didn t

know how she

got

the

paintings

and

was

whether

the

paintings

were on loan to

the

daughter or whether she is going to return them. The p

riding in

a

car with

a friend

who

would drink

and

drjve.

At

this point

the son

now

lives

with her

and has Power

of

Attorney..

I

have been treating the

patient

for

Alzheimer s

dementia, which Is

moderate. She

is on both Aric

and Namenda 10mg b.i.d.

along with

her

other medications, which include Dlovan for

hYPertens

her heart. Nitroglycerine, Nu-iron for anemia,

va,rjous

vitamins,

and

Aspirin.

It is my Impression that the patient has moderate AlzheJmer·s

nd

Is

not competent

to give things

any financial decisions and needs Power of Attorney or

legaJ

guardian to look after

her

bills

and-

t

and make sure

that

she doesn t give away items or her money to inappropriate people.

The

patient s

other medications right

now

include Metoprolol, Oynacirc, Coumadin, Lasix. Spiro

iron,

centrum SHver.

812. and some

prn Nitroglycerine.

The patient s blood pressure today was 110 64 in the right arm and 82 50

in

the

left

arm.

'Sh

deficits.


45/56

NEUROLOGICAL ASSOCIATES

Jay J RUbin, M,D , P.A • Anette V. Nieves, M.D. • Anna Y. Khan

Specializing in Neurological, Neuromuscular, Movement, Sleep,

nd

Cerebrova

Florida

Professional

Park (352)

732-9643

Del Webb

2685 SW Place

(352) 732-2243

fax 14031 D

Ocala,

Fl34474 NeuroHealthinc.com

Summerf

September 4, 2008

Christopher

Grainger, M.D.

4600 SW 46

th

Court, #310

Ocala. Florida 34474

NEUROLOGICAL CONSULTATION

Re: Penelope M. Gillespie

Dear

Christopher:

Thank you for

requesting a

neurological

consu1tation

regarding this 77-year-old

female

with A

Mrs.

Gillespie

is accompanied by

her

son who is a

very

good

historian.

He

also

provided

regarding her

current

medications.

History

of Present Illness:

Mrs. Gillespie has a history

of

progressive short-term memory

imp

with a diagnosis of Alzheimer's disease made by Dr. A. Singh in 2004. She was placed on

evaluated

neurologically

by Dr.

Howell

and

treated

with Aricepl In

2007, Aricept

was stoppe

whereupon

her memory worsened.

Mrs. GiJJespie

stopped

driving in

2004. Her son

cooks

medications.

She generally

eats

and sleeps well, sleeping

about

eight to ten hours a

day on th

infrequently awakens

during

the night. She wears Depends for incontinence and

for

occasiona

some episodes of increased confusion but

no

hallucinations.

Generally,

her disposition is

ve

quite cooperative.

More recently. she has been under the care

of

Dr.

Gaya,

but

her

son

expressed

an

interes

Investigational Study. Her son indicates that Mrs. Gillespie

has

had more confusion this

year

often

does

not seem

to

realize that

her

son Jives

with

her.

Your

evaluation inclUded

a

head CT

scan in

12/07

at

Advanced

Imaging Center that

showed

an

frontoparietal

cortical

stroke

and

atrophy.

She had a

normal

TSH and

8 2

level

in

06/08.

gradually been elevated and was 1.98

in

July

Past Medical/Surgical

History:

Is

noteworthy for atrial

fibrillation1

mitral valve regurgitation,

A

TIA. hypertension

1

and irritable bowel syndrome. She is

sIp

bilateral total knee arthroplasty (in 1

Current

Medications: Namenda 10 mg bid began in 2004 , Aricept 10 mg q a.m. began in

20 mg qd, Spironolactone 25

mg qd,

Coumadin. Ni1roglycerin 0.4

mg

pm,

multivitamins,

v

'.


46/56

Penelope

M.

Gillespie

09/04/08 - Neurological Consultation

(Page 2 of 2)

Family

History

Her mother died at 83 years of age from a stroke. Her father died at 60

myocardial infarction. Her brother is age 82 and

her

sister is age 79, both with heart disea

grandmother

also had

dementia.

Review

of

Systems: Is noteworthy for

weakness, fatigue.

hypertension, occasional che

heartbeat, daytime sleepiness, nocturia, back pain, pain with walking about half a block. con

anxiety, but there is no history of depression according to Mrs. Gillespie or

her

son. Complete

the

chart

and

I reviewed

this

with Mrs.

Gillespie.

NEUROLOGICAL EXAMINATION: Blood pressure is 120/80. Pulse 80 with slight irregularity.

157 Ibs. She is right-handed. Mrs. Gillespie appears short-stature,

pleasant,

cooperative, comf

somewhat flattened affect

f

and with mild bradykinesia. Chest is clear. Heart rate is frequently

murmur or carotid bruits are present. She is disoriented and certainly confused. She recalled

minutes with poor visual spatial skills. She scores 17 30 on the Mini-Mental Status Examination.

FuJI

visual fields and extraocular

movements but with

decreased smooth pursuit.

Normal

elevation of palate,

shrug

and

tongue

movements. There

is mUd

atrophy

present in

the distal

lo

strength

is

normal

throughout. Sensation is only decreased to

vibration

in

the toes.

Normal co

Deep tendon reflexes

are

diminished

throughout

but

symmetrical.

Babinski sign is presen

spasticity

is present.

DIAGNOSES:

1 Moderate dementia consistent with Alzheimer's disease, currently treated with Aricept an

2.

History of right frontoparietal

cortical

stroke probably

occurring

two

years ago by histo

scan

3. Chronic

renal insufficiency.

RECOMMENDATIONS/PLAN: I

revIewed

the

findings,

diagnoses and

treatment options with

M

He is very intelligent. supportive

and

provides many documents including a detailed list

of

a

procedures between 10/05 and 07/08. Her son expresses much interest in helping his moth

research study. Therefore, this is being discussed. If she is a candidate, she will be screened

her son is interested, then we will pursue appropriate treatment. Otherwise, I am going to reco

current medications. We will also schedule a return appointment

for

Mrs. Gillespie and I look f

her along

It was a

pleasure

seeing this delightful

lady

today and I also appreciate the

helpful records

you

pr

- Reverse Mortgage Daily - http://reversemortgagedaily.com -

http://reversemortgagedaily.com/2010/01/14/judge-voids-reverse-mortgage-says-counseling


47/56

Judge Voids Reverse Mortgage, Says Counseling Fails to ProCompetency

Posted By Reva On January 14, 2010 @ 9:50 am In Counseling,Legislation,News,Reverse

Comments

In a ruling last month, Charles J. Thomas, a New York Supreme Court Judge voided a remortgage and its subsequent refinancing on the grounds that the borrower’s mental il lne

unable to understand the reverse mortgage.

In the case, Matter of Doar, 31393/07 [1], the borrower, Ms. Hermina Brunson, took out

mortgage with Financial Freedom on her home in Queens for $300,000 in December of 2refinancing for $375,000 in June of 2003.

However, at the time, Ms. Brunson was being treated for chronic paranoid schizophreniaof 2001, her psychiatrist testified that Ms. Brunson was hearing voices, believed her neig

trying to take her home away from her, and claimed that she no longer had the deed to

Despite the counseling session lasting 45 minutes over the phone, the judge wrote that i

meant to be perfunctory or a mere rubber stamp of the banking or mortgage industry. Iintended to secure that the rights of elderly homeowners were protected. The mortgageentrusted with the responsibility of conducting an inquiry of the applicant’s understandinmortgage agreement.”

Judge Thomas continued, “There is no evidence that Ms. Brunson understood the terms mortgage or the Counseling Certificate that she signed on June 20, 2003.” He faulted thefor not unearthing the borrower’s mental illness and her delusions regarding her home. significantly for the industry, Judge Thomas ruled:

While the Certificate of Counseling is an indication that information was given to thomeowners it is not dispositive of the issue of the mortgagor’s knowledge and understanding of the implications of a reverse mortgage or that the National Hous Act has been satisfied. That determination rests ultimately with the court.

As a result, the responsibility is on the lender to prove that the borrower understood themortgage, regardless of whether or not they received a counseling certificate.

The judge further faulted the counseling process, noting that there was no evidence as tqualifications of the counselor, whether the counselor spoke to Ms. Brunson or only to heMs. Bunson’s questions were answered, and what information the counselor provided.

While recent counseling reforms such as the qualification of the counselor addresses som

issues, this is still a situation that could be repeated today.

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Article printed from Reverse Mortgage Daily: http://reversemortgagedaily.com

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URLs in this post:

[1] Matter of Doar, 31393/07: http://reversemortgagedaily.com/img-112161623-0

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defendant gillespie’s rule 1.150 motion to strike sham pleadings-nov-10-2015

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