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8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
1/50
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 GILLESPIE
FAMILY LIVING TRUST AGREEMENT
DATED FEBRUARY 10, 1997, ET AL.
Defendants.
________________________________________/
STATE OF FLORIDA )) SS.:
COUNTY OF MARION )
AFFIDAVIT OF NEIL J. GILLESPIE
MOTION TO DISQUALIFY JUDGE HALE STANCIL NOV-09-201
BEFORE ME, this day personally appeared NEIL J. GILLESPIE, who, upon
deposes and says:
1. I am over the age of eighteen and am competent to testify as to the facts and
forth herein;
2. I make this affidavit upon personal knowledge of the matters set forth herein
otherwise stated;
3. Today November 9, 2015 the Marion County Clerk’s public online docket incaptioned case shows “Default Entered” at document no. 228, 3 pages. (Exhibit 1)
4. The document appearing today November 9, 2015 as document no. 228 at th
Entered” location described in paragraph 3 appears at Exhibit 2, but does not show t
was entered Instead there is a hand-written message in the signature block for the C
Filing # 34313389 E-Filed 11/11/2015 03:01:30 AM
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL J. GILLESPIE November
TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015
5. 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 namFlorida Bar attorney directory page for Curtis Alan Wilson, Fla. Bar No. 77669. (Ex
6. 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.
7. 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).
8. Today November 9, 2015 document no. 225 was not “locked” and shows “A
OF CONSTRUCTIVE SERVICE FL BAR NO. 77669” (Unofficial Document, Exh
Curtis Wilson, Esq. (but signed Curtis Wilson Nov-03-2015) also known as Curtis A
Fla. Bar No. 77669. The Unofficial Document, AFFIDAVIT OF CONSTRUCTIVE
FL 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 retained
of Provest, LLC to make diligent search and inquiry to discover the name an
of UNKNOWN SETTLORS BENEFICIARIES OF THE GILLESPIE FAM
LIVING TRUST AGREEMENT DATED FEBRUARY 4, 1997, Defendant
action and they are set forth in this statement as particularly as is investigate
2. After making diligent search and inquiry, the residence of said Defen
UNKNOWN SETTLORS BENEFICIARIES OF THE GILLESPIE FAMIL
TRUST AGREEMENT DATED FEBRUARY 4, 1997, is unknown to and P
is unable to determine if said Defendant(s) are living or dead.
3. The Defendant is over the age of 18 years
9. 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 6, a separate 32 p
and negates the preceding AFFIDAVIT OF CONSTRUCTIVE SERVICE FL BAR
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL J. GILLESPIE November
TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015
11. Therefore I move to disqualify Judge Stancil as judge in this action under Fl
38.10, Rule 2.330 Fla. R. Jud. Admin., the Code of Judicial Conduct for the State of
Supreme Court of Florida Administrative Order No. AOSC14-66, because I fear thareceive a fair trial in this cause because of specifically described prejudice or bias of
12. The specific grounds in support of this affidavit and motion are the foregoin
through 14, which are reiterated here as if set forth in full here.
13. I have a reasonable fear of not receiving a fair trial before Judge Hale Stanci
becoming the target of further deprivation of rights under color of law, intimidation
and/or retaliation in part for having exercised and asserted my civil rights and disab
under the Constitution and laws of the United States, and of Florida, and Internation
Florida Code of Judicial Conduct
14. Fla. Code Jud. Conduct, Canon 3E(1) A judge shall disqualify himself or
his or her impartiality might reasonably be questioned.
Memorandum of Law
Note: The old Rule 2.160 Fla. R. Judicial Admin. has been replaced by Rule
15. Litigant's right to impartial judge. The importance of the duty of rendering a
judgment is that of doing it in such a manner as would raise no suspicion of the fair
integrity of the judge. State ex rel. Arnold v. Revels, 113 So.2d 218, Fla.App. 1 Dis
Every litigant is entitled to nothing less than the cold neutrality of an impartial judgv. State, 837 So.2d 1167, Fla.App. 4 Dist.,2003.) and the law intends that no judge w
in a case in which he or she is not wholly free, disinterested, impartial, and independ
Steele, 348 So.2d 398, Fla.App. 1977. When a judge enters into the proceedings and
participant, a shadow is cast upon judicial neutrality so that his or her disqualificatio
required. Evans v. State, 831 So.2d 808, Fla.App. 4 Dist., 2002.
16. The conditions requiring the disqualification of the judge to act in that partic
prescribed by statute. § 38.02 Fla. Stat. The basic tenet for the disqualification of a j
judge must satisfy the appearance of justice. Hewitt v. State, 839 So.2d 763, Fla.Ap
2003. The question of disqualification focuses on those matters from which a litigan
reasonably question a judge's impartiality rather than the judge's perception of his or
to act fairly and impartially. Wargo v. Wargo, 669 So.2d 1123, Fla.App. 4 Dist.,199
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL J. GILLESPIE November
TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015
Question of disqualification of a trial judge focuses on those matters from which a l
reasonably question a judge's impartiality rather than the court's own perception of i
act fairly and impartially. West’s F.S.A. § 38.10, Valdes-Fauli v. Valdes-Fauli, 903Fla.App. 3 Dist.,2005 reh'g denied, (Feb. 17, 2005).
18. Sufficiency of motion or affidavit of prejudice. A motion to disqualify must
party fears that he or she will not receive a fair trial or hearing because: (1) of a spe
described prejudice or bias of the judge; Fla. R. Jud. Admin., Rule 2.160 (d)(1). Gen
critical determination in deciding the legal sufficiency of a motion to disqualify has
whether the facts alleged would prompt a reasonably prudent person to fear he or sh
receive a fair trial, Barnhill v. State, 834 So.2d 836 Fla., 2002. If a motion to recuse
technically sufficient and the facts alleged therein also would prompt a reasonably p
person to fear that he or she could not get a fair and impartial trial from the judge, th
legally sufficient and should be granted. Coleman v. State, 866 So.2d 209, Fla.App.
The motion to disqualify a judge should contain facts germane to the judge's undue
prejudice, or sympathy. Chamberlain v. State, 881 So.2d 1087, Fla., 2004.
19. Whether a motion to disqualify a judge is legally sufficient requires a determwhether the alleged facts would create in a reasonably prudent person a well-founde
receiving a fair and impartial trial. Fla. R. Jud. Admin., Rule 2.160 (f), Rodriguez v
So.2d 1252, Fla.,2005, as revised on denial of reh'g, (Jan. 19, 2006). The primary co
in determining whether motion to disqualify trial judge should be granted is whether
alleged, if true, would place a reasonably prudent person in fear of not receiving a fa
impartial trial. Arbelaez v. State, 898 So.2d 25, Fla.,2005, reh'g denied, (Mar. 18, 20
motion for disqualification must be granted if the alleged facts would cause a reason
person to have a well-founded fear that he/she would not receive a fair and impartiaJarp, 919 So.2d 614, Fla.App. 3 Dist.,2006. The test a trial court must use in determ
whether a motion to disqualify a judge is legally sufficient is whether the facts alleg
place a reasonably prudent person in fear of not receiving a fair and impartial trial. S
909 So.2d 364, Fla.App. 5 Dist.,2005, reh'g denied, (Sept. 2, 2005). The motion to
judge must be well-founded and contain facts germane to the judge's undue bias, pre
sympathy. Scott v. State, 909 So.2d 364, Fla.App. 5 Dist.,2005, reh'g denied, (Sept.
20. Disqualification is required when litigants demonstrate reasonable, well-grothat they will not receive fair and impartial trial, or that judge has pre-judged case. W
Balch, 897 So.2d 498, Fla.App. 4 Dist., 2005.
21. Time for filing motion; waiver of objection. A motion to disqualify shall be
reasonable time not to exceed 10 days after discovery of the facts constituting the gr
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL J. GILLESPIE
November
9 2
TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015
the truth of the facts alleged. Fla. R Judicial Admin. 2.160(t).
No
other reason for de
be stated, and an order
of
denial shall not tale issue with the motion. Fla. R. Judicial Ad
2.160(t). Accordingly, a judge may not rule on the truth of the facts alleged
or
address
substantive issues raised by the motion but may only determine the legal sufficiency o
motion. Knarich v. State, 866 So.2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004). In determi
whether the allegations that movant will not receive a fair trial so as to disqualify a
jud
sufficient, the facts alleged must be taken as true (Frengel v. Frengel, 880 So.2d 763, F
Dist.,2004), and must be viewed from the nlovant's perspective. Siegel v. State,
861
So
Fla.App. 4 Dist.,2003.
23. Case law forbids trial judges to refute facts set forth in a motion to disqualify, a
doing so will result in judicial disqualification irrespective of the facial sufficiency of t
underlying claim. Brinson v. State, 789 So.2d 1125, Fla.App. 2 Dist.,200
1
A trial judg
attempt to refute charges of partiality thus exceeds the scope of inquiry on a motion to
and alone establishes grounds for disqualification. J & J Industries, Inc. v. Carpet Show
Tampa Bay, Inc., 723 So.2d 281, Fla.App. 2 Dist.,1998.
24. Whether the motion is legally sufficient is a pure question
of
law; it follows tha
proper standard of review is the de novo standard (Sume v. State, 773 So.2d 600 Fla.A
Dist.,2000) and an order denying a motion to disqualify a trial judge is reviewed for ab
discretion. King v. State, 840 So.2d 1047, Fla.,2003.
25. Once a motion for disqualification has been filed, no further action can be taken
trial court, even if the trial court is not aware of the pending motion. Brown v. State
863 So.2d 1274, Fla.App. 1 Dist.,2004. A judge presented with a motion to disqualify h
herself must rule upon the sufficiency
of
the motion immediately and may not consider
matters before considering the disqualification motion. Brown v. State 863 So.2d 1274
1 Dist.,2004. The court is required to rule immediately on the motion to disqualify the j
even though the movant does not request a hearing. Fuster-Escalona v. Wisotsky,
781
S
1063, Fla.,2000. The rule places the burden on the judge to rule immediately, the mova
required to nudge the judge nor petition for a writ of mandamus. G.C. v Department
o
and Families, 804 So.2d 525 Fla.App. 5 Dist., 2002.
The undersigned movant certifies that the motion and the movant's statements a
in good faith.
Under penalties of perjury, I declare that I have read the foregoing motion and t
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL
J.
GILLESPIE
November 9,
TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015
The foregoing instrument was acknowledged before me, this
q daX of
Novem
by Neil J. Gillespie, who is personally known to me,
or
who has produced
fL
L
identification and states that he
is
the person who made this affidavit and that its conte
truthful to the best
of
his knowledge.
(SEAL) TAISHA MORAN
OTARY PUBLIC
NOTARY
PUBLIC
STATE OF FLORtOA
Comm
FF011703
TatsHe= HQCQ n
•
• •
Expires
412412017
Name
o ~ r y
Public
My
Commission Expires: L :J41
0 7
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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AFFIDAVIT OF NEIL J. GILLESPIE Novemb
TO DISQUALIFY JUDGE HALE STANCIL
Certificate of Service
I hereby certify that today November 11, 2015 I served the forgoing to the followin
the Florida E-filing Portal.
Judge Hale Stancil, Email: [email protected]
VIA UPS No. 1Z64589FP296682800Judge Hale Stancil
Marion County Judicial Center
110 N.W. 1st Avenue
Ocala, FL 34475
Curtis Wilson a/k/a Curtis Alan Wilson (Fla. Bar No. 77669)
McCalla Raymer LLC
Email: [email protected]
Neil J. Gillespie
8092 SW 115th LoopOcala, FL 34481
Tel: 352-854-7807
Email: [email protected]
https://www.civitekflorida.com/ocrs/app/caseinformation.xhtml?query=CyTsX QZPFTZAwa
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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
GILLESPIE, NEIL J DEFENDANT
DEVELOPMENT &
CONSTRUCTION
COR
DEFENDANT
GILLESPIE, JOETTA DEFENDANT
p pp q y y _Q
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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:
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Division:
10-Year Disc ipline
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Firm:
Firm Size:
Firm Position:
Firm Website:
Curtis Alan Wilson
77669
225 E Robinson St Ste 660
Orlando, FL 32801-4321
United States
Office: 407-674-1850 x2915
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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8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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
GILLESPIE, NEIL J DEFENDANT
OAK RUN
HOMEOWNERS
ASSOCIATION
DEFENDANT
UNITED STATESOF AMERICA DEFENDANT
BAUERLE,
ELIZABETHDEFENDANT
GILLESPIE, MARK DEFENDANT CAPARAS, TIFFANY 89863
GILLESPIE, NEIL J DEFENDANT
DEVELOPMENT &
CONSTRUCTIONCOR DEFENDANT
GILLESPIE, JOETTA DEFENDANT
https://www.civitekflorida.com/ocrs/app/caseinformation.xhtml?query=CyTsX_QZPFTZAwa
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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 TRANS
217 06/17/2015 TRANSCRIPT CONT - SEE DOC
215 06/16/2015 NOTICE OF FILING CORRECTED ORIGINAL TRANS
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Filing # 23275828 E-Filed 02/03/2015 01:25:45 AM
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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 C
RECOUPMENT; 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
Filing # 23275828 E-Filed 02/03/2015 01:25:45 AM
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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
3. As to paragraph 3 of the Verified Complaint, Defendants deny the allegatio
is attached to the Verified Complaint as Composite Exhibit "C." A HECM reverse mnon-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
reverse mortgage is a non-recourse loan and the lender has no further means to colle
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.
6. As to paragraph 6 of the Verified Complaint, Defendants deny the allegation
reverse mortgage is a non-recourse loan and the lender has no further means to colle
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
7. As to paragraph 7 of the Verified Complaint, Defendants deny the allegation
reverse mortgage is a non-recourse loan and the lender has no further means to colle
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.
8. As to paragraph 8 of the Verified Complaint, Defendants deny the allegation
9. As to paragraph 9 of the Verified Complaint, Defendants deny the allegation
reverse mortgage is a non-recourse loan and the lender has no further means to colle
10. As to paragraph 10 of the Verified Complaint, Defendants deny the allegatio
reverse mortgage is a non-recourse loan and the lender has no further means to colle
11 As to paragraph 11 of the Verified Complaint Defendants are without know
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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
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 anhas no further means to collect the debt.
14. As to paragraph 14 of the Verified Complaint, Defendants deny the allegatio
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.
15. As to paragraph 15 of the Verified Complaint, Defendants deny the allegatio
16. As to paragraph 16 of the Verified Complaint, Defendants deny the allegatio
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.
18. As to paragraph 18 of the Verified Complaint, Defendants deny the allegatio
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.
19. As to paragraph 19 of the Verified Complaint, Defendants deny the allegatio
an improper party. A HECM reverse mortgage is a non-recourse loan and the lender
further means to collect the debt.
20. As to paragraph 20 of the Verified Complaint, Defendants deny the allegatio
reverse mortgage is a non-recourse loan and the lender has no further means to colle
21. As to paragraph 21 of the Verified Complaint, Defendants deny the allegatio
reverse mortgage is a non-recourse loan and the lender has no further means to colle
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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
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.
23. As to paragraph 23 of the Verified Complaint, Defendants deny the allegatio
reverse mortgage is a non-recourse loan and the lender has no further means to colle
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
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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
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
Ocala, Florida 34481
Phone: 352-854-7807
Email: [email protected]
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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
Email: [email protected]
Email: [email protected]
Neil J. Gillespie Mark Gillespie
8092 SW 115th Loop 7504 Summer Meadows Drive
Ocala, FL 34481 Ft. Worth, TX 76123
Email: [email protected] Email: [email protected]
Unknown spouse of Mark Gillespie n/k/a Joetta Gillespie
7504 Summer Meadows Drive
Ft. Worth, TX 76123
Email: mark gillespie@att net
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Elizabeth Bauerle n/k/a Elizabeth Bidwood Unknown spouse of Elizabeth B7504 Summer Meadow Drive 6356 SW 106th Place
Ft. Worth, TX 76123 Ocala, FL 34476
Email: [email protected] Email: [email protected]
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
Email: [email protected]
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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
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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.:fI .
RMS'" Reverse
Mortgage
Solutions Inc
Statement
Date:
5010 Unbar Drive, Suite 100
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
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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
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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At
' Reverse
Mortgage Solutions Inc
Statement Date:
5010 Unbar Drive, Suite 100
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.
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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C)
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~ ; = = = = = = ~ ; =
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m f j l m l l ~ m l l f m l l m { : { i @ : { l m l : l ~ i
= = ~ = = = = = =
m i i i R i i i m i i i f f i i i j i ? : ~ i i i m i i i R i i i ;
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8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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
8/20/2019 Affidavit of Neil j. Gillespie Motion to Disqualify Judge Hale Stancil Nov-09-2015
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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 _
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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
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AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT
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
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AFFIDAVIT O NEIL
J.
GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT
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
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AFFIDAVIT OF NEIL J. GILLESPIE - DEFENSES AND CLAIMS IN RECOUPMENT
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.
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OCALA
NEURODIAGNOSTIC
CENT·ER
Windsor Oaks Medical Park
1901 S.E. 8th Avenue Bldg 400
Ocala, Florida 34471
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.
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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
fibrillation
1
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
'.
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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
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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 the
for 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
URL to article: http://reversemortgagedaily.com/2010/01/14/judge-voids-revemortgage-says-counseling-fails-to-prove-competency/
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[1] Matter of Doar, 31393/07: http://reversemortgagedaily.com/img-112161623-0
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