Motion For Clerk To Reassign Case to Another Judge

8/20/2019 Motion For Clerk To Reassign Case to Another Judge

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THIS IS NOT A COMMERCIAL FORCLOSURE IN THE CIRCUIT COURT OF THE

FIFTH JUDICIAL CIRCUIT FLORIDA

IN AND FOR MARION COUNTY

REVERSE MORTGAGE SOLUTIONS, INC.,

CASE NO.: 2013-CA-000115

Plaintiff, 42-2013-CA-000115-AXXX-XX

vs. Residential HECM Foreclosure Case

Florida Homestead of Neil J. Gillespie

NEIL J. GILLESPIE AND MARK GILLESPIE

AS CO-TRUSTEES OF THE GILLESPIE

FAMILY LIVING TRUST AGREEMENT

DATED FEBRUARY 10, 1997, ET AL.

Defendants.

________________________________________/

DEFENDANTS’ MOTION FOR CLERK TO REASSIGN CASE TO ANOTHER JUDGE

Rule 2.330(j) Florida Rules of Judicial Administration

Defendant Neil J. Gillespie, individually, and as former Trustee (F.S. Ch. 736 Part III) of

the terminated Gillespie Family Living Trust Agreement Dated February 10, 1997 (“Terminated

Trust”), an indigent non-lawyer, unable to obtain adequate counsel, a consumer of legal and court

services affecting interstate commerce, a consumer of personal, family and household goods and

services, consumer transactions in interstate commerce, a person with disabilities, and a vulnerable

adult, henceforth in the first person, reluctantly appears pro se, and moves under Rule 2.330(j)

Florida Rules of Judicial Administration, for the Clerk to reassign this case to another judge:

1. On November 11, 2015 the Clerk docketed AFFIDAVIT OF NEIL J. GILLESPIE

MOTION TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015, Filing # 34313389

E-Filed 11/11/2015 03:01:30 AM. Exhibit 1.

2. My affidavit and motion to disqualify Judge Hale Stancil that appears at Exhibit 1 was

served on Judge Stancil by the Florida Portal (Exhibit 2) on November 11, 2015 at 3:01 AM at

the email address that appears on The Florida Bar online directory page for Judge Stancil,

Flroida Bar ID 165425, [email protected] (Exhibit 3).

Filing # 36445015 E-Filed 01/12/2016 12:09:42 PM


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DEFENDANTS’ MOTION FOR CLERK TO REASSIGN CASE TO ANOTHER JUDGE January 12, 2016


2

3. My affidavit and motion to disqualify Judge Hale Stancil that appears at Exhibit 1 was

also provided to Judge Stancil by United Parcel Service (UPS) tracking #1Z64589FP296682800.

Proof of Delivery November 12, 2015 at 10:36 AM, and shipping, appear at Exhibit 4.

4. Judge Hale Stancil has NOT within 30 days filed with the clerk evidence of a ruling on

my affidavit and motion to disqualify Judge Stancil that appears at Exhibit 11.

5. Judge Hale Stancil has NOT within 30 days provided me evidence of a ruling on my

affidavit and motion to disqualify Judge Stancil that appears at Exhibit 1.

6. Pursuant to Rule 2.330(j) Florida Rules of Judicial Administration,

(j) Time for Determination. The judge shall rule on a motion to disqualify immediately,

but no later than 30 days after the service of the motion as set forth in subdivision (c). If

not ruled on within 30 days of service, the motion shall be deemed granted and the

moving party may seek an order from the court directing the clerk to reassign the case.

7. Judge Stancil’s 30 days time to respond under Rule 2.330(j) expired December 11, 2015.

8. Because of the forgoing facts, and Rule 2.330(j), my affidavit and motion to disqualify

Judge Hale Stancil that appears at Exhibit 1 is deemed granted. I hereby move for an order from

the court directing the clerk to reassign the case.

WHEREFORE, I move for an order from the court directing the clerk to reassign this case.

RESPECTFULLY SUBMITTED January 12, 2016.

Neil J. Gillespie, individually, and former Trustee,

F.S. Ch. 736 Part III, of the Terminated Trust8092 SW 115th Loop Phone: 352-854-7807

Ocala, Florida 34481 mail: [email protected]

1 Judge Stancil entered an order December 12, 2015 that denied my motion to disqualify filed

December 6, 2015. But Judge Stancil has not ruled on the instant motion to disqualify.


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3

Service List January 12, 2016

I hereby certify the following names were served by email today January 12, 2016through the Florida Portal.

Neil J. Gillespie

The Honorable Hale R. Stancil

Email: [email protected]

Marion County Judicial Center

110 N.W. 1st Avenue

Ocala, FL 34475

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

McCalla Raymer, LLC 400 N. Tampa Street, Suite 3200

225 E. Robinson Street, Ste. 660 Tampa, FL 33602

Orlando, FL 32801 Email: [email protected]

Email: [email protected] [email protected]

Gregory C. Harrell David R. Ellspermann Marion County Clerk

General Counsel to David R. Ellspermann, of Court & Comptroller

Marion County Clerk of Court & Comptroller P.O. Box 1030

P.O. Box 1030 Ocala, Florida 34478-1030

Ocala, Florida 34478-1030 Email: [email protected]


Development & Construction Corporation Oak Run Homeowners Association, Inc.

of America, c/o Carol Olson, Vice President c/o Board of Directors, [email protected]

of Administration and Secretary-Treasurer,

for RA Priya Ghumman

10983 SW 89 Avenue

Ocala, FL 34481


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

Agreement dated February 10, 1997

8092 SW 115th Loop

Ocala, FL 34481




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4

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


Unknown Settlors/Beneficiaries of The Gillespie Family Living Trust Agreement dated

February 10, 1997

8092 SW 115th Loop

Ocala, FL 34481


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

7504 Summer Meadow Drive 6356 SW 106th Place

Ft. Worth, TX 76123 Ocala, FL 34476



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CASE NO.: 2013-CA-000115


vs. Residential Home Foreclosure Case






Defendants.

________________________________________/

STATE OF FLORIDA )

) SS.:

COUNTY OF MARION )

AFFIDAVIT OF NEIL J. GILLESPIE

MOTION TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015

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

deposes and says:

1. I am over the age of eighteen and am competent to testify as to the facts and matters setforth herein;

2. I make this affidavit upon personal knowledge of the matters set forth herein unless

otherwise stated;

3. Today November 9, 2015 the Marion County Clerk’s public online docket in the above

captioned 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 the “Default

Entered” location described in paragraph 3 appears at Exhibit 2, but does not show that default

was entered. Instead, there is a hand-written message in the signature block for the Clerk of theCircuit Court of the document, which is “MOTION TO DEFAULT” dated November 3, 2015

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

LLC, Filing # 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 Clerk

10/28/15 - you may Request A “Judicial” Default” followed by “NH” with a circle

around, and 11.9.15 below

Filing # 34313389 E-Filed 11/11/2015 03:01:30 AM

1


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AFFIDAVIT OF NEIL J. GILLESPIE November 9, 2015

TO DISQUALIFY JUDGE HALE STANCIL NOV-09-2015

2

5. Attorney Curtis Wilson is also known as Curtis Wilson, Esq., and is also known as Curtis

Alan Wilson, Fla. Bar No. 77669, of McCalla Raymer, LLC, and perhaps other names. See the

Florida Bar attorney directory page for Curtis Alan Wilson, Fla. Bar No. 77669. (Exhibit 3).

6. The foregoing is evidence of a criminal conspiracy between Judge Hale Stancil, Clerk David R. Ellspermann and attorney Curtis Wilson a/k/a/ Curtis Alan Wilson, against Chapter

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” eFiled document

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

8. Today November 9, 2015 document no. 225 was not “locked” and shows “AFFIDAVIT

OF CONSTRUCTIVE SERVICE FL BAR NO. 77669” (Unofficial Document, Exhibit 5) by

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

Fla. Bar No. 77669. The Unofficial Document, AFFIDAVIT OF CONSTRUCTIVE SERVICE

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

Before me, the undersigned authority, personally appeared, Curtis Wilson, Esq, who, first

being duly sworn, deposes and says:

1. Affiant is the attorney for the Plaintiff in this action. He has retained the services

of Provest, LLC to make diligent search and inquiry to discover the name and residence

of UNKNOWN SETTLORS BENEFICIARIES OF THE GILLESPIE FAMILY

LIVING TRUST AGREEMENT DATED FEBRUARY 4, 1997, Defendant(s) in this

action and they are set forth in this statement as particularly as is investigated by them.

2. After making diligent search and inquiry, the residence of said Defendant(s)UNKNOWN SETTLORS BENEFICIARIES OF THE GILLESPIE FAMILY LIVING

TRUST AGREEMENT DATED FEBRUARY 4, 1997, is unknown to and Provest, LLC

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 FORECLOSE HOME

EQUITY CONVERSION MORTGAGE (HECM); DEFENSES AND CLAIMS IN

RECOUPMENT; OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLAIMS, Filing

# 23275828 E-Filed 02/03/2015 01:25:45 AM, appears as Exhibit 6, a separate 32 page volume,

and negates the preceding AFFIDAVIT OF CONSTRUCTIVE SERVICE FL BAR NO. 77669.

10. The foregoing is a continuation of the criminal conspiracy of Judge Hale Stancil, Clerk

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

DEFENDANT GILLESPIE’S RULE 1.150 MOTION TO STRIKE SHAM PLEADINGS

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


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4

Question of disqualification of a trial judge focuses on those matters from which a litigant may

reasonably question a judge's impartiality rather than the court's own perception of its ability to

act fairly and impartially. West’s F.S.A. § 38.10, Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214,

Fla.App. 3 Dist.,2005 reh'g denied, (Feb. 17, 2005).

18. Sufficiency of motion or affidavit of prejudice. A motion to disqualify must show that the party fears that he or she will not receive a fair trial or hearing because: (1) of a specifically

described prejudice or bias of the judge; Fla. R. Jud. Admin., Rule 2.160 (d)(1). Generally, the

critical determination in deciding the legal sufficiency of a motion to disqualify has been

whether the facts alleged would prompt a reasonably prudent person to fear he or she would not

receive a fair trial, Barnhill v. State, 834 So.2d 836 Fla., 2002. If a motion to recuse is

technically sufficient and the facts alleged therein also would prompt a reasonably prudent

person to fear that he or she could not get a fair and impartial trial from the judge, the motion is

legally sufficient and should be granted. Coleman v. State, 866 So.2d 209, Fla.App. 4 Dist.,2004.

The motion to disqualify a judge should contain facts germane to the judge's undue bias,

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 determination as to

whether the alleged facts would create in a reasonably prudent person a well-founded fear of not

receiving a fair and impartial trial. Fla. R. Jud. Admin., Rule 2.160 (f), Rodriguez v. State, 919

So.2d 1252, Fla.,2005, as revised on denial of reh'g, (Jan. 19, 2006). The primary consideration

in determining whether motion to disqualify trial judge should be granted is whether the facts

alleged, if true, would place a reasonably prudent person in fear of not receiving a fair and

impartial trial. Arbelaez v. State, 898 So.2d 25, Fla.,2005, reh'g denied, (Mar. 18, 2005). A

motion for disqualification must be granted if the alleged facts would cause a reasonably prudent

person to have a well-founded fear that he/she would not receive a fair and impartial trial. Jarp v.

Jarp, 919 So.2d 614, Fla.App. 3 Dist.,2006. The test a trial court must use in determining

whether a motion to disqualify a judge is legally sufficient is whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Scott v. State,

909 So.2d 364, Fla.App. 5 Dist.,2005, reh'g denied, (Sept. 2, 2005). The motion to disqualify a

judge must be well-founded and contain facts germane to the judge's undue bias, prejudice, or

sympathy. Scott v. State, 909 So.2d 364, Fla.App. 5 Dist.,2005, reh'g denied, (Sept. 2, 2005).

20. Disqualification is required when litigants demonstrate reasonable, well-grounded fear

that they will not receive fair and impartial trial, or that judge has pre-judged case. Williams v.

Balch, 897 So.2d 498, Fla.App. 4 Dist., 2005.

21. Time for filing motion; waiver of objection. A motion to disqualify shall be filed within a

reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for themotion and shall be promptly presented to the court for an immediate ruling. Fla. R. Jud.

Admin., Rule 2.160(e). Although a petition to disqualify a judge is not timely filed,

extraordinary circumstances may warrant the grant of an untimely motion to recuse. Klapper-

Barrett v. Nurell, 742 So.2d 851, Fla.App. 5 Dist.,1999.

22. Judicial determination of initial motion. The judge against whom an initial motion to

disqualify us directed shall determine only the legal sufficiency if the motion an shall not pass on


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AFFIDAVIT OF NEIL J. GILLESPIE

November

9 2015


the truth of the facts alleged. Fla. R Judicial Admin. 2.160(t).

No

other reason for denial shall

be stated, and an order of denial shall not tale issue with the motion. Fla. R. Judicial Admin.

2.160(t). Accordingly, a judge may not rule on the truth of the facts alleged

or

address the

substantive issues raised by the motion but may only determine the legal sufficiency of the

motion. Knarich v. State, 866 So.2d 165 (Fla. Dist. Ct. App. 2d Dist. 2004). In determining

whether the allegations that movant will not receive a fair trial so as to disqualify a

judge

are

sufficient, the facts alleged must be taken as true (Frengel v. Frengel, 880 So.2d 763, Fla.App. 2

Dist.,2004), and must be viewed from the nlovant's perspective. Siegel v. State,

861

So.2d 90,

Fla.App. 4 Dist.,2003.

23. Case law forbids trial judges to refute facts set forth in a motion to disqualify, and their

doing so will result in judicial disqualification irrespective of the facial sufficiency of the

underlying claim. Brinson v. State, 789 So.2d 1125, Fla.App. 2 Dist.,200

1

A trial judge's

attempt to refute charges of partiality thus exceeds the scope of inquiry on a motion to disqualify

and alone establishes grounds for disqualification. J & J Industries, Inc. v. Carpet Showcase of

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 that the

proper standard of review is the de novo standard (Sume v. State, 773 So.2d 600 Fla.App. 1

Dist.,2000) and an order denying a motion to disqualify a trial judge is reviewed for abuse of

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 by the

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 him- or

herself must rule upon the sufficiency of the motion immediately and may not consider other

matters before considering the disqualification motion. Brown v. State 863 So.2d 1274, Fla.App.

1 Dist.,2004. The court is required to rule immediately on the motion to disqualify the judge,

even though the movant does not request a hearing. Fuster-Escalona v. Wisotsky,

781

So.2d

1063, Fla.,2000. The rule places the burden on the judge to rule immediately, the movant is not

required to nudge the judge nor petition for a writ of mandamus. G.C. v Department

of

Children

and Families, 804 So.2d 525 Fla.App. 5 Dist., 2002.

The undersigned movant certifies that the motion and the movant's statements are made

in good faith.

Under penalties of perjury, I declare that I have read the foregoing motion and the facts

stated in it are true.

FURTHER

AFFIANT SAYETH NOT,

5


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AFFIDAVIT OF NEIL

J.

GILLESPIE

November 9, 2015


The foregoing instrument was acknowledged before me, this

q daX of

November 2015,

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

or

who has produced fL

L

as

identification and states that he

is

the person who made this affidavit and that its contents are

truthful to the best

of

his knowledge.

(SEAL) TAISHA MORAN

OTARY PUBLIC

NOTARY

PUBLIC

STATE OF FLORtOA

Comm

FF011703

TatsHe= HQCQ n

•

• • Expires 412412017

Print Name o ~ r y Public

My

Commission Expires: L :J41

0 7

6


11/71


TO DISQUALIFY JUDGE HALE STANCIL

Certificate of Service

I hereby certify that today November 11, 2015 I served the forgoing to the following names onthe Florida E-filing Portal.

Judge Hale Stancil, Email: [email protected]

VIA UPS No. 1Z64589FP296682800

Judge 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


Neil J. Gillespie

8092 SW 115th Loop

Ocala, FL 34481

Tel: 352-854-7807Email: [email protected]


12/71

New Search Expand AllCase Information

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

STANCIL, HALE R JUDGE

REVERSE

MORTGAGE

SOLUTIONS INC

PLAINTIFFWILSON, CURTIS

ALAN

77669

GILLESPIE, NEIL J DEFENDANT

OAK RUN

HOMEOWNERS

ASSOCIATION

DEFENDANT

UNITED STATES

OF AMERICADEFENDANT

BAUERLE,

ELIZABETHDEFENDANT

GILLESPIE, MARK DEFENDANT CAPARAS, TIFFANY 89863


DEVELOPMENT &

CONSTRUCTION

COR

DEFENDANT

GILLESPIE, JOETTA DEFENDANT

228 11/09/2015 DEFAULT ENTERED 3

225 11/06/2015 AFFIDAVIT OF CONSTRUCTIVE SERVICE 2

226 11/06/2015 MOTION TO STRIKE SHAM PLEADINGS 97

227 11/06/2015 AFFIDAVIT OF NEIL J GILLESPIE AND MOTION TO DISQUALIF 14

224 11/04/2015 CERTIFICATE OF FILING 6

220 11/03/2015 EFILED MOTION FOR DEFAULT 3


222 11/03/2015 AFFIDAVIT OF INABILITY TO DETERMINE MILITARY STATUS 1

https://www.civitekflorida.com/ocrs/app/caseinformation.xhtml?query=CyTsX_QZPFTZAwafrJy-kIzdO_L9qvQZMhxh

1


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Curtis Alan Wilson

77669

225 E Robinson St Ste 660

Orlando, FL 32801-4321

United States

Office: 407-674-1850 x2915

[email protected]

www.floridabar.org/mybarprofile/77669

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11/6/2015


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neil.gillespie

New Search Expand AllCase Information

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

STANCIL, HALE R JUDGE

REVERSE

MORTGAGE

SOLUTIONS INC

PLAINTIFFWILSON, CURTIS

ALAN77669


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

225 11/06/2015 eFiled Document 2


220 11/03/2015 EFILED MOTION FOR DEFAULT 3


222 11/03/2015 AFFIDAVIT OF INABILITY TO DETERMINE MILITARY STATUS 1


11/6/2015 14


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223 11/03/2015 AFFIDAVIT OF CONSTRUCTIVE SERVICE 1

218 06/18/2015 NOTICE OF FILING APPEAL TO FLORIDA SUPREME COURT 51

216 06/17/2015 NOTICE OF FILING CORRECTED ORIGINAL TRANSCRIPT 2

217 06/17/2015 TRANSCRIPT CONT - SEE DOC 15

215 06/16/2015 NOTICE OF FILING CORRECTED ORIGINAL TRANSCRIPT 18


11/6/2015 1


21/715


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CASE NO.: 2013-CA-000115


vs. Residential Home Foreclosure Case






Defendants.

________________________________________/

DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLOSE

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

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

Defendants Neil J. Gillespie, individually, and as former Trustee (F.S. Ch. 736 Part III)

of the terminated Gillespie Family Living Trust Agreement Dated February 10, 1997

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

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

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

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

1. As to paragraph 1 of the Verified Complaint, Defendants deny the allegations. A HECM

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



There nothing is attached to the Verified Complaint as Exhibits "A" and "B," respectively.Previously I notified HUD and RMS that the mortgage alleged to be recorded in the public

records of Marion County was void for interlineation, a hand-written material alteration, not

initialed and not dated. See Bland v. Fidelity Trust Co., 71 Fla. 499, 71 So. 630 (1916). Under

Florida law a material alteration voids the instrument and destroys the identity of the contract

rendering it unenforceable. The interlineation is evidence of fraud by the lender and/or lender-

affiliated parties.

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

6


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

OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLAIMS

2

3. As to paragraph 3 of the Verified Complaint, Defendants deny the allegations. Nothing

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

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 allegations. A HECMreverse mortgage is a non-recourse loan and the lender has no further means to collect the debt.

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

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

sued the wrong party. A HECM foreclosure must commence within 6 months. 24 C.F.R. §

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

The Plaintiff did not foreclose until January 9, 2013. The time has expired, even under Fla. law.

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

the debt.

6. As to paragraph 6 of the Verified Complaint, Defendants deny the allegations. A HECMreverse mortgage is a non-recourse loan and the lender has no further means to collect the debt.

The property is the principal residence of me, Neil J. Gillespie, my homestead property, which is

exempt from levy and execution under Section 4, Article X of the Florida State Constitution.



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

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

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

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

my authority as Trustee of the Trust, and acting in that capacity, I terminated the Trust as provided by Fla. Stat. § 736.0414, and Article V, the Trust.

8. As to paragraph 8 of the Verified Complaint, Defendants deny the allegations.





11. As to paragraph 11 of the Verified Complaint, Defendants are without knowledge and therefore deny the allegations. A HECM reverse mortgage is a non-recourse loan and the lender

has no further means to collect the debt.

12. As to paragraph 12 of the Verified Complaint, Defendant denies the allegations. The

Plaintiff failed to perfect service on me personally and as Trustee. A HECM reverse mortgage is

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


25/71




3

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

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


14. As to paragraph 14 of the Verified Complaint, Defendants deny the allegations. Therecord shows the Plaintiff failed to effectuate service of process on Defendant, NEIL J.

GILLESPIE AND MARK GILLESPIE AS CO-TRUSTEES OF THE GILLESPIE FAMILY

LIVING TRUST AGREEMENT DATED FEBRUARY 10,1997, which is not a proper party.

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

Trust as provided by Fla. Stat. § 736.0414, and Article V, the Trust. A HECM reverse mortgage

is 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 allegations.

16. As to paragraph 16 of the Verified Complaint, Defendants deny the allegations. On

information and belief, the Plaintiff failed to follow the procedure for constructive service of process, and appointment of guardian ad litem for UNKNOWN SPOUSE OF ELIZABETH

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

means to collect the debt.

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

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


18. As to paragraph 18 of the Verified Complaint, Defendants deny the allegations. The

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

POSSESSION 1 and UNKNOWN TENANT IN POSSESSION 2. A HECM reverse mortgage isa 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 allegations. ORHA is

an improper party. A HECM reverse mortgage is a non-recourse loan and the lender has no

further means to collect the debt.





22. As to paragraph 22 of the Verified Complaint, Defendants deny the allegations. Plaintiff

failed to make service of process on THE UNKNOWN TRUSTEES, SETTLERS AND

BENEFICIARIES or other parties claiming an interest in the subject property by, through, under,

or against UNKNOWN SETTLERS/BENEFICIARIES OF THE GILLESPIE FAMILY LIVING

TRUST AGREEMENT DATED FEBRUARY 10, 1997. The Plaintiff failed to follow the

procedure for constructive service of process, and appointment of guardian ad litem for “THE


26/71




4

UNKNOWN TRUSTEES, SETTLERS AND BENEFICIARIES OF UNKNOWN

SETTLERS/BENEFICIARIES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENT

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

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

Trust. A HECM reverse mortgage is a non-recourse loan and the lender has no further means tocollect the debt.



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

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

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

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

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

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

DEFENDANTS’ DEFENSES AND CLAIMS IN RECOUPMENT, Sec. 673.3051 Fla. Stat.

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

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

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

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

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

3. Fraud that induced the obligor to sign the instrument with neither knowledge nor

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 recoupment.

DEFENDANTS’ OTHER DEFENSES


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

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

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

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

Pursuant to my authority as Trustee of the Trust, and acting in that capacity, I terminated theTrust as provided by Fla. Stat. § 736.0414, and Article V, the Trust.

The Plaintiff failed to effectuate service on the Defendants, therefore this Court does not have

lawful jurisdiction over the Defendants

Plaintiff sued the wrong party. Each month the Plaintiff sends a monthly statement to Penelope

Gillespie, see attached. The Plaintiff sued the wrong party. A HECM foreclosure must


27/71




5

commence within 6 months. 24 C.F.R. § 206.125(d)(1). Bank of America gave notice October 5,

2009 the mortgage was due and payable. The Plaintiff did not foreclose until January 9, 2013.

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

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

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

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

The Plaintiff did not foreclose until January 9, 2013. The time has expired, even under Fla. law.


the debt.

DEFENDANTS’ COUNTER-CLAIMS


lawful jurisdiction over the Defendants, thus the Defendants’ counter-claims against the Plaintiff

will be brought by a separate action.

DEFENDANTS’ CROSS-CLAIMS


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

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 Terminated Trust

8092 SW 115th Loop

Ocala, Florida 34481

Phone: 352-854-7807



28/71

Amended Certificate of Service

CORRECTED Feb-03-2015

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

DEFENDANTS’ ANSWER TO VERIFIED COMPLAINT TO FORECLOSE HOME EQUITY

CONVERSION MORTGAGE (HECM); DEFENSES AND CLAIMS IN RECOUPMENT;OTHER DEFENSES; COUNTER-CLAIMS; AND CROSS-CLAIMS through the Florida E-

Filing Portal to names on the service list.

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

McCalla Raymer, LLC 400 N. Tampa Street, Suite 3200

225 E. Robinson Street, Ste. 660 Tampa, FL 33602

Orlando, FL 32801 Email: [email protected]

Email: [email protected] [email protected]

[email protected]

Oak Run Homeowners Association, Inc. Development & Construction Corporation of America,Registered Agent Paul Pike c/o Carol Olson, Vice President of Administration,

11665 SW 72ND CIRCLE and Secretary-Treasurer, for RA Priya Ghumman

OCALA, FL 34476 10983 SW 89 Avenue

c/o ORHA President Ocala, FL 34481


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

Agreement dated February 10, 1997

8092 SW 115th Loop

Ocala, FL 34481

Email: [email protected]: [email protected]

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


Unknown Settlors/Beneficiaries of The Gillespie Family Living Trust Agreement dated

February 10, 1997

8092 SW 115th Loop

Ocala, FL 34481



29/71

2

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

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 (Georgia)

(collectively “McCalla Raymer”)

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

/Beneficiaries of The Gillespie Family Living Trust Agreement dated February 10, 1997, and

other unknown parties, and failed to move the Court for appointment of a representative for unknown parties. Judge Stancil stated in open court December 18, 2014 that only a lawyer can

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

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

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

8092 SW 115th Loop


Phone: 352-854-7807Email: [email protected]


30/71

~ :

RMS'"

Reverse Mortgage Solutions, Inc

Statement Date: January 01, 2015

5010 Unbar Drive, Suite 100

Nashville,

TN

37211

Year

Ending: December 31,

2014

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 Information

Original Credit Line:

$0.00

Current Gross Credit Line:

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

Net Credit Line Set Aside (=):

* Modified Term

or

Modified Tenure only

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 (=):

$0.00

$0.00

$0.00

$100,056.00

$117,213.44

$114,824.06

$3,638.23

$0.00

$0.00

$0.00

($1,248.85)

Interest Rate Information:

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

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

Interest (Finance Charge):

IMonthly Periodic Rate on

IAPPlicable Principal Balance:

MIP Monthly Periodic Rate on Applicable

0.1340A> Principal Balance:

Periodic

Finance Charge: $153.75

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 1.770

%

. Your present

interest rate was based on an index value

of

0.140°A>.

To

determine your new interest rate, we added the current index value

of

0.270°A>

as

of

December

29 2014

as published by the Federal Reserve Bank, to the agreed upon margin of

1.500%

for a total of 1.770%. This new

rate has not been rounded to the nearest 1/8th percent. The initial interest rate on your mortgage was 3.660°A>, which may not be increased

beyond

13.660

during the life of the mortgage.

*Total Funds Available

Net Credit Line Set Aside

+

Net Principal Limit = $0.00

IN ORDER TO MAKE FUTURE WITHDRAWALS, YOU SHOULD MAINTAIN A MINIMUM 50.00 BALANCE IN YOUR LINE OF CREDIT

If you have any questions or would like further information on your reverse mortgage, please call our Customer Service Department.

Loan Skey: 69977

2727

Spring Creek

Drive

Spring TX 77373

Page 1

of

4

ep.Skey:

92

Phone (866) 503-5559 - Fax (866) 790-3451 -

TTY/TOD

(888) 827-6697


31/71

.:fI .

RMS'" Reverse

Mortgage

Solutions Inc

Statement

Date: January 01, 2015


Nashville,

TN 37211

Year

Ending: December

31,2014

Loan Balance

ctivity

Current Month

Year

To

Date

114,592.56

revious Loan Balance

112,069.08

0.00

oan

Advance

I

Scheduled Payment (if applicable): 0.00

0.00

oan Advance / Unscheduled Disbursements (if applicable): 0.00

0.00 0.00

epair

Set

Aside Disbursements:

0.00

0.00

axes Paid:

Insurance Paid:

0.00 0.00

0.00 0.00

ther Property Charges:

153.75 1,828.33

nterest (Finance Charge):

MIP (Finance Charge): paid to HUD: 566.65

47.75

Monthly Servicing Fee (Finance Charge): 30.00

360.00

0.00

0.00

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

0.00

0.00

'

:

Transaction Intll'c>rmatic>n):

754.98

otal Balance ity:

Closing Loan Balance as of December

31,2014

114,824.06

114,824.06

*

Corporate Advance (not part

of

Loan Balance):

1,945.40197.50

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 Cumulative

Advances Fee

Loan

Advances this

Month

0.00 153.75 47.75

30.00

231.50 '

0.00 0.00 0.00 0.00 231.50 :

0.00

0.00 0.00 0.00

231.50

i

0.00

0.00 0.00 0.00

231.50 I

0.00

153.75 47.75 30.00 231.50 :

(/nt) Interest

-

(MIP) Mortgage Insurance Premium

-

(SF) Servicing Fee

-

(Disb) Advance Disbursement

-

(Part Repay) Partial Repayment

* Corporate

Advance (not

part of Loan

Balance)

0.0

157.5

20.0

20.0

197.5

Loan Skey: 69977

2727

Spring Creek

Drive,

Spring,

TX 77373

Page 2

of

4

Rep.Skey: 92

Phone (866) 503-5559 -

Fax

(866) 790-3451 -

TIY/TDD

(888) 827-6697


32/71

.

•

R

t5' Reverse

Mortgage Solutions

Inc

Statement

Date:

January

01, 2015

5010 Linbar Drive, Suite 100

Nashville, TN

37211

Year Ending: December 31, 2014

A.

ANNUAL

PERCENTAGE RATE (APR)

The ANNUAL PERCENTAGE RATE for the interest portion

of

your FINANCE CHARGE may increase or decrease annually based upon changes in the

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

of

your FINANCE CHARGE may vary. To detern1ine the ANNUAL

PERCENTAGE RATE that will apply to your Account,

we

add a margin to the value

of

the Index, subject to certain rate limitations as provided in your

Reverse Mortgage Note.

The corresponding annual percentage rate for the interest portion

of

the FINANCE CHARGE does not include costs other than interest. The historical

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 CHARGE beginning on the day afte

each advance

or

payment is made. A FINANCE CHARGE will continue to be assessed on your Reverse Mortgage until the entire outstanding balance and

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 the balance existing at the

beginning

of

each month, which includes any payments

or

credits applied to your loan during the previous month, (ii) calculating the FINANCE CHARGE on

each advance, payment

or

credit made to you

or

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

of

these sums together, as follows:

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

of

each month, which includes FINANCE CHARGES from the previous

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

of

each month, we multiply the Previous Loan Balance by the then-current ANNUAL PERCENTAGE RATE

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

payments have been made to

you or on your behalf, we multiply the amount

of

the advance or payment by the number

of

days remaining in the month after that advance or payment was

made (not including the day the advance was made) and then multiply this amount by the then-current ANNUAL PERCENTAGE RATE divided by 365 (the

"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 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 requires MIP to be paid to it by your

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

of

each month

in

which any advances (also known as disbursements and labeled as

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

or

payment (other than any advance

or payment that exceeds the maximum advances

or

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

of

days remaining

in

the

n10nth

afte

that advance or payment was made (not including the

day

the advance was made),and then multiply this amount by your MIP rate divided by 365 (the "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 month.

E. CALCULATION

OF

BALANCES

The "Principal Limit Information" section on the front

of

the monthly statement shows your "Original Principal Limit" and your "Net Principal Limit" which

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

of

this monthly statement shows your prior month's Previous Loan Balance and you

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

or if

you have any

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 monthly statement each month. Thls

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

If

you repay all or a portion of your loan balance and the annua

interest paid due to a repayment exceeds $600, a separate IRS Form 1098 will be mailed to you by January 31 st. Interest accrued on this loan, other than

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

in

full.

G. BILLING RIGHTS SUMMARY

In

case

of

errors

or

questions about your loan monthly statement, you will need to contact us as follows:

If you think your monthly statement is wrong or you need more information about a transaction on your monthly statement, write us at Reverse Mortgage

Service Center, Attn: Billing Department, 2727 Spring Creek Drive, Spring,

TX

77373. Write to us as soon as possible.

We

must hear from you no later than

60 days after we send you the FIRST monthly statement on which the error

or

problem appeared. You can telephone us, but doing so will not preserve you

rights.

In

your letter, give us the following information:

1. Your name and loan number

2.

The dollar amount

of

the suspected error

3. Describe the suspected error and explain, if you can, why you believe there is an error.

Loan Skey: 69977

2727

Spring Creek

Drive,

Spring,

TX 77373

Page 3

of

4

Rep.Skey: 92

Phone (866) 503-5559 - Fax (866) 790-3451 -

DY TDO

(888) 827-6697


33/71

At

' Reverse

Mortgage Solutions Inc

Statement Date: January 01, 2015


Year

EndinQ: December

31 2014

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 monthly statement was corre

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

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

charges that apply to it

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

in

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 account. However, you have t

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

in

full

in

one payment if your loan has been called Due a

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

in

U.S. Dollars.

Do

not send cash. Payments must be mailed to

address listed on the bottom

of

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

Loan Skey: 69977 2727 SprinQ Creek

Drive

SprinQ,

TX

77373

Page 4

of

4

Rep.Skey: 92

Phone (866) 503-5559 - Fax (866) 790-3451 -

TTY/TDD

(888) 827-6697


34/71

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35/71

Termination of the Gillespie Family Living Trust Agreement Dated February 10 1997

STATE OF FLORIDA )

) SS.:

COUNTY OF MARION )

AFFIDAVIT

BEFORE ME this day personally appeared NEIL

J.

GILLESPIE, who upon being duly

sworn deposed upon oath as follows:

1.

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

of

age. This affidavit is given on

personal knowledge unless otherwise expressly stated.

2.

I am sole Trustee of the Gillespie Family Living Trust Agreement Dated February 10,

1997 (hereinafter Trust ).

3. My Florida residential homestead property is the sole asset

of

the Trust, property address

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

have lived in the property continuously and uninterruptedly since February 9, 2005, Tax ID No.

7013-007-001, legal description:

Lot(s)

1

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

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

Marion County, Florida.

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

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 hereby

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

market value

of

the assets

of

the Trust is zero. The Trust served its intended purpose

of

transferring the property to the beneficiary without going through probate.

6. Pursuant to Fla. Stat. § 736.0414 Modification or termination

of

uneconomic trust. (1)

After notice to the qualified beneficiaries, the trustee

of

a trust consisting of trust property


36/71

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

if

the trustee concludes that the

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 February, 2015,

FL-bL

Sl 0

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

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


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

_

2


37/71

THIS

IS

NOT

A COMMERCIAL

FORCLOSURE

IN THE CIRCUIT COURT OF THE




CASE NO.: 2013-CA-000115


vs.

Residential Home Foreclosure Case

Florida Homestead

of

Neil J. Gillespie




DATED FEBRUARY 10,1997, ET AL.

Defendants.

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

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 being duly

sworn deposed upon oath as follows:

1.

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

personal knowledge unless otherwise expressly stated.

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

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

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

identification parcel number

of

this property, which is exempt from levy and execution under

Section 4, Article X

of

the Florida State Constitution, for the following described property:

Lot(s) 1 Block G, OAK RUN WOODSIDE TRACT, according to the Plat thereof as

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

Marion County, Florida.


38/71


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

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

alleges at paragraph

4:

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

§

673.3011, as the

owner and holder

of

an instrument.

4.

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

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

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 party to pay

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 other law,

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

of

Texas

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 financial

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

8.

Ms. Gillespie lacked capacity as Grantor Trustee on June 5 2008 to manage or bind in

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

Alzheimer's disease and/or dementia.

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

appointed for Ms. Gillespie.

10.

I was Ms. G'illespie's primary caregiver. I was power of attorney for Ms. Gillespie,

healthcare surrogate, living will proxy, personal representative (alternative) in the Last Will and

Testament ofMs. Gillespie, and personal representative under Fla. Stat. § 198.01(2).

2


39/71

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, Ocala

Neurodiagnostic Center, Windsor Oaks Medical Park, Bldg 400,

1901

S.E. 18th Avenue, Ocala,

Florida 34471, Noverrlber 1,2005 through the close of his practice December 12,2006.

12. On May

8

2006 Dr. Howell wrote to Dr. Christopher Grainger, Ms. Gillespie's primary

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

make any financial decisions:

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

that the patient has moderate Alzheimer's and

is

not competent to give things away or

make any financial decisions..."

The letter

of

Dr. Howell dated May

8

2006

is

attached.

13.

On September 4, 2008 Dr. Jay

J.

Rubin, M.D wrote to Dr. Granger about Ms. Gillespie's

participation

in

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

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

his Neurological Examination that "She

is

disoriented and certainly confused." The letter

is

attached.

14.

A Home Equity Conversion Mortgage or HECM,

is

a Federal Housing Administration

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

of

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

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

is

governed by federal law:

12 U.S.C.

§

1715z-20 - Insurance of home equity conversion mortgages for elderly

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

15.

A HECM reverse mortgage

is

a non-recourse loan, and the lender has no further means to

collect the debt beyond the terms of the original documents. The accounts in this case include:

Federal Housing Authority (FHA) Case Number: 091-4405741

Bank

of

America, N.A. (BofA) Account No.: 68011002615899

Reverse Mortgage Solutions, Inc. (RMS) Loan Number: 68011002615899

3


40/71

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

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. Gillespie,

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

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

reverse mortgage. A transcript

of

the counseling session shows Ms. Gillespie did not actively

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

answer five

of

the ten review questions" or make other effort to determine if she understood

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

but required under

12

USC

§

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

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

17.

Ms. Gillespie had Alzheimer's disease and dementia and lacked capacity at the time of

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

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

of

the Ocala office

of

The Park Avenue

Bank was the HECM loan originator. I told Ms. Baize that Penelope Gillespie had Alzheimer's

disease early

in

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

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. Instead,

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

required us all to sign the HECM Notes and HECM Mortgages. When the HECM closed June 5

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

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

19.

At all times pertinent to this HECM, Ms. Gillespie was not competent and suffered from

Alzheimer's disease and dementia.

4


41/71


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

should have

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

21. Charles J. Thomas, a New York Supreme Court Judge, voided a reverse mortgage and its

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

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] December 18, 2009

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

Bureau pursuant to Judiciary Law § 431. As corrected through Thursday, October 7 2010.

Appellate Division continued to require that a mortgagee have knowledge of the

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

In order to void a contract which is voidable because

of

incapacity, the mortgagor must

establish that the mortgagee had knowledge of the incapacity and were not bona fide

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

Under these circumstances, the court finds that Hermina Brunson was incapable of

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

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

of

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 knowledge of the

incapacity and were not bona fide mortgagees for value.

FURTHER AFFIANT SAYETH NOT,

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

of

February, 2015,

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

or

who has produced as

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


of

his knowledge, information and belief.

(SEAL)

~ ~ ~ ~ CECIUA

ROSENBERGER

j :

Comnission

#

EE 191610

NOTARY PUBLIC

: Expires

JtIle

6 2016

. t

1InTftJrflln

701t

Print Name of Notary Public

My Commission Expires: _

5


42/71

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

Psychla1

lean Board af

Neurology

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 ca e of her

and

lives with her

that

she had

contributed 40,000 towards

a

mortgage to purchase a share in

a

rests

rant

and

the

money was gone and the

restaurant

closed. This

involved

one

of

the patient s

children, a daughter.

The patient

also apparently

gave

several

paintings

to the

daughter

and

they

were not famny portraits

or

heirl ms, but they

were worth around 20.000. The

patient herself didn t

know how she

got

the

paintings

and

wasn t certain

as to

whether

the

paintings

were on loan to

the

daughter or whether she is going to return them. The pat ent also was

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

AricepJ1

Omg

a

day

and Namenda 10mg b.i.d.

along with

her

other medications, which include Dlovan for

hYPertenslorl. Digoxin

for

her heart. Nitroglycerine, Nu-iron for anemia,

va,rjous

vitamins,

and

Aspirin.

I

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

nd

Is

not competent

to give things

a

ay

or make

any financial decisions and needs Power of Attorney or

legaJ

guardian to look after

her

bills

and-

t8k care of her

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. Spiron actone, Nu

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.

'She

as no focal

deficits.

She is to

come

back

and

see

me for follow

up In

six months.

SincerelYt

l L ~

Gregory J. Howell, M.D.

GJH/Jcm


43/71

NEUROLOGICAL ASSOCIATES

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

D.

Specializing in Neurological, Neuromuscular, Movement, Sleep,

nd

Cerebrovascular Disorders

Florida

Professional

Park (352)

732-9643

Del Webb Spruce

Creek

2685 SW Place

(352) 732-2243

fax 14031 Del

Webb

Blvd.

Ocala,

Fl34474

NeuroHealthinc.com

Summerfield,

Fl34491

September 4, 2008

Christopher

Grainger, M.D.

4600 SW 46

th

Court, #310

Ocala. Florida 34474

NEUROLOGICAL CONSULTATION

Re: Penelope M. Gillespie

Chart : 56021

Dear

Christopher:

Thank you for

requesting a

neurological

consu1tation

regarding this 77-year-old

female

with Alzheimer's

disease.

Mrs.

Gillespie

is accompanied by

her

son who is a

very

good

historian.

He

also

provided a

nicely printed

list

regarding her

current

medications.

History

of Present Illness:

Mrs. Gillespie has a history

of

progressive short-term memory

impairment

culminating

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

Namenda

and

then

evaluated

neurologically

by Dr.

Howell

and

treated

with Aricepl In

2007, Aricept

was stopped

for eighteen days

whereupon

her memory worsened.

Mrs. GiJJespie

stopped

driving in

2004. Her son

cooks and

manages her

medications.

She generally

eats

and sleeps well, sleeping

about

eight to ten hours a

day on the average, and

she

infrequently awakens

during

the night. She wears Depends for incontinence and

for

occasional diarrhea.

She

has

some episodes of increased confusion but

no

hallucinations.

Generally,

her disposition is

very

good and she

is

quite cooperative.

More

recently. she

has been under

the care

of

Dr.

Gaya,

but

her

son

expressed

an

interest

in the Alzheimer's

Investigational Study. Her son indicates that Mrs. Gillespie

has

had more confusion this

year.

For example, she

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

old

appearing

right

frontoparietal

cortical

stroke

and

atrophy.

She had a

normal

TSH and

8 2

level

in

06/08.

Her

creatinine has

gradually been elevated and was 1.98

in

July

Past Medical/Surgical History:

Is noteworthy for atrial

fibrillation

1

mitral valve regurgitation, Alzheimer's disease,

TIA. hypertension

1

and irritable bowel syndrome. She is

sIp

bilateral total knee arthroplasty (in 1998 and 2000).

Current

Medications: Namenda 10 mg bid began in 2004 , Aricept 10 mg q a.m. began in 2005). Furosemide

20 mg qd, Spironolactone 25

mg qd,

Coumadin. Ni1roglycerin 0.4

mg

pm,

multivitamins,

vitamins

86

& 812,

Imodium AD pm, and Tylenol

pm.

She

is

not to take Advil

1

Aleve. Motrin or

Ibuprofen.

Allergies:

Rythmol, Methotrexate,

or

fresh, frozen

or canned corn.

Social History:

Mrs. Gillespie is widowed and has three children. She is a high school graduate. She smoked

minimally in the past. No history of any alcohol consumption. She is retired

from

retail

work. She

enjoys watching

television and reading newspaper and

m g ~ i n e s

(Page

1

of 2)

C

1


44/71

'.

Penelope

M.

Gillespie

09/04/08 - Neurological Consultation

(Page 2 of 2)

Family

History

Her

mother

died at

83

Documents

Motion For Clerk To Reassign Case to Another Judge