VIA UPS No.

1Z64589FNW91507926

May 28, 2014

Shaun Donovan, Secretary

U.S. Department of Housing and Urban Development (HUD)
451 7th Street S.W.
Washington, DC 20410
RE: Reverse Mortgage Solutions, Inc. v. Neil J. Gillespie, Co-Trustee, et al.
U.S. Court of Appeals for the Eleventh Circuit, no. 13-11585-B
District Court no: 5:13-cv-00058-WTH-PRL, removed from Marion County Florida
Marion County Florida, Fifth Judicial Circuit, no. 42-2013CA-000115-AXXX-XX
Consumer Financial Protection Bureau (CFPB) Case No. 120914-000082; 140304-000750
RE: FOIA Request 14-FI-RO6-01365
Dear Secretary Donovan:
The enclosed letter from the Consumer Financial Protection Bureau (CFPB) to Senator Marco
Rubio March 24, 2014 in CFPB Case No. 140304-000750 states, we have forwarded Neil
Gillespies complaint information to the HUD to provide assistance. When can I expect
assistance from HUD, Secretary Donovan? A ruling Jan-04, 2013 in Bennett v. Donovan held,
HUD itself has the capability to provide complete relief to the lenders and mortgagors alike,
which eliminates the uncertainty of third-party action that would otherwise block standing.
I am one of three (3) original borrowers, along with my deceased mother Penelope Gillespie, and
brother Mark Gillespie, on a Home Equity Conversion Mortgage (HECM) in foreclosure. The
Plaintiff Reverse Mortgage Solutions (RMS) alleges the death of Penelope Gillespie September
16, 2009 is grounds to accelerate the debt. But I am a surviving borrower living in the home.
Enclosed is my Motion to Reconsider, Vacate or Modify Order, Appeal No. 13-11585-B, US
Eleventh Circuit Court of Appeals. The Courts Order July 25, 2013 that states in relevant part:
"Should Gillespie wish to petition for mandamus relief, he may file a separate petition for a
writ of mandamus or prohibition with this Court. See 28 U.S.C. 1651; Fed.R.App.P.21".
I request HUD grant relief as allowed in Bennett v. Donovan for the issues in my motion.
HUD contends Penelope Gillespie is the only borrower, but unfortunately she lacked capacity to
make a HECM due to Alzheimers dementia, and immediate cause of death. A New York court
voided a reverse mortgage for borrowers incapacity. Matter of Doar (Brunson) 2009 NY Slip
Op 29549 [28 Misc 3d 759]. Therefore HUD should void the mortgage because the mortgagee
had knowledge of the mortgagors incapacity and was not a bonefide mortgage for value.
HUD is free to take any action or no action. I believe the issues in my Motion to Reconsider,
Vacate or Modify Order will state a cause of action and ultimately prevail.

Shaun Donovan, Secretary

U.S. Department of Housing and Urban Development (HUD)

May 28, 2014

Page -2

A ruling in Santos rejected definition of borrower as only natural persons acting individually.
Isabel Santos, individually & trustee, et al. v RMS, 12-3296-SC, USDC, ND Cal.
The district courts Order Remanding Case (Doc. 19) holds on page 4, footnote 1,
This Order should not be interpreted as a ruling concerning whether, or to what extent, Mr.
Gillespie can sue HUD in a separate action. Rather, this Order is limited to whether the Court
has subject matter jurisdiction over the specific action that has been removed to this Court.
13-7280
The US Supreme Court denied review Petition No. 13-7290. Denial is not a judgment on the merits.
In CFPB Case No. 120914-000082, Bank of America Customer Advocate Christopher Pickle
perpetrated a fraud on the CFPB with this false information: Laws that govern customer privacy
prevent us from providing you with details about any relationship we may have with any
customer without first obtaining the written consent of such customer. This falsehood was then
wrongly incorporated into the CFPB closeout letter, copy enclosed.
Apparently the Consumer Financial Protection Bureau does not know that privacy laws do not
protect the privacy of dead people. Dead people do not have privacy rights. Privacy rights are
personal and die with the individual. Nestor v. Posner-Gerstenhaber, 857 So. 2d 953 (Fla. Dist.
Ct. App. 3d Dist. 2003), review denied, 869 So. 2d 540 (Fla. 2004).
Apparently U.S. Senator Marco Rubio does not know that privacy laws do not protect the
privacy of dead people either. Enclosed letters from Bank of Americas Anthony Boney dated
March 12, 2014 and March 19, 2014 to Sen. Rubio also wrongly invoke privacy for the dead.
[E]even where a private confidentiality agreement is otherwise proper, it will not be enforced
where its effect becomes obstructive of the rights of non-parties. See, e.g., Nestor v. PosnerGerstenhaber, 857 So. 2d 953, 955 (Fla. 3rd DCA 2003); Scott v. Nelson, 697 So. 2d 1300, 1301
(Fla. 1st DCA 1997). Quoted by the Court in Tardif, Trustee (Jason Yerk) v. PETA, USDC, SD
Fla. Fort Myers Div. Case No. 2:09-cv-537-FtM-29SPC
HUD has not adequately responded to FOIA Request 14-FI-RO6-01365, see enclosed my letter
to Bill Tolbert/FOIA Liaison. Felicia Jones is n/a. When can I expect to receive all the records?
Thank you in advance for the courtesy of a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481

Telephone: 352-854-7807
Email: neilgillespie@mfi.net

Enclosures

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VIA Email to william.tolbert@hud.gov

May 28, 2014

Bill Tolbert/FOIA Liaison

Senior Management Analyst
Office of the Field Office Director
HUD Oklahoma City Field Office
301 NW 6th Street, Suite 200
Oklahoma City, OK 73102
Tel. 405-609-8461, Fax. 405-609-8982
Dear Mr. Tolbert,
Thank you for your response.
Unfortunately the records provided are missing hundreds of pages documents.
1.
On May 13, 2014 I make but did not get a response to a records request to Deidra Jenkins
HUD FOIA Specialist:
Kindly identify the person designated to accept service of legal process for Shaun Donovan,
Secretary, U.S. Department of Housing and Urban Development (HUD). Provide the address
where the designated person may be served legal process for Secretary Donovan.
Kindly provide a legible copy of the oath of office for the following:
Shaun Donovan, Secretary, U.S. Department of Housing and Urban Development (HUD)
Deidra Jenkins, Deidra.D.Jenkins@hud.gov, FOIA Specialist, U.S. Department of Housing and
Urban Development (HUD), Office of the Executive Secretariat
Benjamin Shultz, benjamin.shultz@usdoj.gov, Department of Justice Attorney for HUD
Michael Raab, michael.raab@usdoj.gov, Department of Justice Attorney for HUD
2.
Your response does not show my 227 page complaint to HUD. On August 9, 2012 I made
a written complaint to HUDs Atlanta Homeownership Center pursuant to the complaint
procedure set forth in the HUD Reverse Mortgage Handbook 7610.01, Section 4-19. My
complaint was 227 pages, with a CD recording of the 2008 HECM telephone counseling.
The index to Appendix 1 and Appendix 2 are attached showing individual missing documents.
HUD Complaint August 9, 2012 by Neil J. Gillespie, twenty-five (25) pages
Exhibit A, a two page Notice of Default and Intend to Foreclose
Exhibit B, CD audio recording of the April 22, 2008 HECM telephone counseling
Separate Volume Appendix 1, Exhibits 1-21 (108 pages)
Separate Volume Appendix 2, Exhibits 22-42 (92 pages)
3.
You provided a one-page assignment of mortgage (a poor quality copy) that is missing
the Direct Endorsement Allonge and other transfer documentation.

Bill Tolbert/HUD FOIA Liaison

HUD Senior Management Analyst

May 28, 2014

Page -2

On June 3, 2008 - two days before the loan closed - Liberty Reverse Mortgage somehow sold a
nonexistent HECM Note and HECM Mortgage to Bank of America. Libertys Jessica Yee also
made a Direct Endorsement Allonge - without recourse - May 29, 2008 that predates execution
of the Note by a week. The Direct Endorsement Allonge was made Pay To The Order Of: Bank
of America, N.A., a National Banking Association. The Allonge became a permanent part of
said Note on May 29, 2008:
For purposes of further endorsement of the following described Note, this Allonge is
affixed and becomes a permanent part of said Note on May 29, 2008.
On May 29, 2008 a Note did not exist. The Allonge has a fatal defect that vitiates the Note,
making it unenforceable. The Allonge was made Without Recourse to Bank of America, N.A.,
and thus without recourse against the property. This defective chain of custody is fatal and
vitiates the Assignment of Mortgage executed by BofA to the Plaintiff March 27, 2012.
4.
Other documents missing. The [first] Home Equity Conversion Mortgage is missing. The
[first] Adjustable Rate Note (Home Equity Conversion) is missing. This is a list of the Home
Equity Conversion Mortgage documents that I signed June 5, 2008. All are missing except the
second mortgage and second note that you provided.
a. Home Equity Conversion Mortgage
b. Home Equity Conversion Second Mortgage [provided]
c. Adjustable Rate Note (Home Equity Conversion)
d. Adjustable Rate Second Note (Home Equity Conversion) [provided]
e. Home Equity Conversion Mortgage Federal Loan Closing Truth-In-Lending
Disclosure Statement
f. Florida Department of Revenue Return for Transfers of Interest in Real Property
g. Trustees Affidavit - Refinance Transaction
h. Acceptance of Office by Co-Trustees
5.
During the course of litigation, I provided documents to HUDs counsel in the US
Attorneys Office in Tampa. None of those documents were provided. Initially an incorrect
referral to HUD Miami got some of the documents, but that was remedied.
When can I expect a full response to my FOIA? Thank you in advanced for a response.
Sincerely,

Neil J. Gillespie
8092 SW 115th Loop
Ocala, Florida 34481
Telephone: 352-854-7807
Email: neilgillespie@mfi.net

enclosures

APPENDIX I
Gillespie Complaint to HUD, August 9, 2012
U.S. Department of Housing and Urban Development (HUD)
RE: Reverse Mortgage Solutions, acct./loan no. 68011002615899
Exhibit 1

Assignment of Mortgage to Reverse Mortgage Solutions, Mar-27-2012

Exhibit 2

Assignment of Deed to Bank of America, Jun-03-2008 (unlawful)

Exhibit 3

Notice of Assignment, Sale or Transfer, Servicing Rights, Jun-03-2008 (unlawful)

Exhibit 4

Direct Endorsement Allonge, to Bank of America, May 29, 2008 (unlawful)

Exhibit 5

Residential Loan Application for HECM Reverse Mortgage, June 5, 2008

Exhibit 6

Financial Title Company, Borrower's Escrow Instructions, May 28, 2008

Exhibit 7

Residential Loan Application for HECM Reverse Mortgage, April 25, 2008

Exhibit 8

Park Ave. Bank, Liz Baize letter with documents to Neil Gillespie

Exhibit 9

HECM First Mortgage, June 5, 2008, WITHOUT interlineation

Exhibit 10

HECM Second Mortgage, June 5, 2008, WITHOUT interlineation

Exhibit 11

HECM First Note, June 5, 2008

Exhibit 12

HECM Second Note, June 5, 2008

Exhibit 13

Quit-Claim Deed, June 5, 2008

Exhibit 14

Certificate of HECM Counseling package, Susan Gray-CCCS-MMI, Apr-23-2008

Exhibit 15

Certificate of HECM Counseling, signed, April 25, 2008

Exhibit 16

The Reverse Mortgage Analyst, April 25, 2008

Exhibit 17

Liberty Rev. Mort, Re-disclosed Calculations, May 16, 2008

Exhibit 18

The Reverse Mortgage Analyst, June 5, 2008

Exhibit 19

Financial Title Co., Buyers-Borrower's Closing Statement, FINAL, May-29-2008

Exhibit 20

HUD Buyers-Borrowers Closing Statement, Faxed, Fatima Pacheco, May 28, 2008

Exhibit 21

Richard T. Kwiatkowski, business card, Have Seal - Will Travel, LLC.

APPENDIX II
Gillespie Complaint to HUD, August 9, 2012
U.S. Department of Housing and Urban Development (HUD)
RE: Reverse Mortgage Solutions, acct./loan no. 68011002615899
Exhibit 22

HUD final settlement statement, HECM, June 5, 2008

Exhibit 23

Email from Liz Baize, Park Ave Bank, problem with documents, June 10, 2008

Exhibit 24

HECM Notice of Right to Cancel, June 5, 2008

Exhibit 25

Fax to RMS, dispute the delinquency and foreclosure, June 19, 2012

Exhibit 26

Bank Failure, Geoorgia Dept. Banking closed Park Ave. Bank, April 29, 2011

Exhibit 27

FDIC, receiver for Park Ave. Bank, April 29, 2011

Exhibit 28

FDIC, Park Ave. Bank, Consent, 09-084-WA/RB-HC-SM, July 14, 2009

Exhibit 29

San Jose Business Journal, Financial Title Shuts Down, July 30, 2008

Exhibit 30

Genworth lures Liberty Reverse Mortgage with $50 million, July 29, 2007

Exhibit 31

Durable Power of Attorney, Neil Gillespie, February 21, 2006

Exhibit 32

HECM Mortgage, with INTERLINEATION

Exhibit 33

HECM Second Mortgage, with INTERLINEATION

Exhibit 34

Tom DeBeauchamp, BofA FedEX label, January 15, 2009

Exhibit 35

Negative growth reimbursement check, $38.89, January 6, 2009

Exhibit 36

Reimbursement check, $133.38 January 6, 2009

Exhibit 37

Letter, Karen Yantis, BofA, RE: Negative Growth, January 14, 2009

Exhibit 38

Liberty Reverse Mortgage, Fla. Div. Corp., 2008 Annual Report

Exhibit 39

Liberty Reverse Mortgage, Fla. Div. Corp., 2008 name change to Genworth

Exhibit 40

HUD: $1 BILLION TO BE PAID BY THE BANK OF AMERICA

Exhibit 41

HUD Rev. Mortgage Handbook, B.10 Reviewing Clients Level of Understanding

Exhibit 42

General Allegations, HUD, breach of Fiduciary Duty, Predatory Lending

March 24, 2014

The Honorable Marco Rubio

8669 NW 36th Street, Suite 110
Doral, FL 33166

Re: Complaint 140304-000750 (Gillespie)

Dear Senator Rubio:

Thank you for contacting the Consumer Financial Protection Bureau (CFPB) and providing an
opportunity for us to assist your constituent, Neil Gillespie, with a complaint filed. Our Office of
Consumer Response has reviewed the complaint.
Currently, the Department of Housing and Urban Development (HUD) is handling complaints related
to this matter. Therefore, we have forwarded Neil Gillespies complaint information to the HUD to
provide assistance.
For more information or to follow up on Neil Gillespies complaint, you may contact the HUD at:
Department of Housing and Urban Development (HUD)
451 7th Street, SW
Room 5204
Washington, DC 20410
www.portal.hud.gov
(800) 669-9777
With this correspondence, we are closing the file on this matter within Consumer Response. Please
feel free to contact the CFPBs Intergovernment Team should you need help with another consumer
finance matter in the future.
Thank you,
Intergovernment Team
Office of Consumer Response
(202) 435-9400

MARCO RUBIO

COMMITTEES:

FLORIDA

COMMERCE, SCIENCE, AND

TRANSPORTATION

tinitm ~tQtrs

~rnatf

WASHINGTON, DC 20510

FOREIGN RELATIONS
SELECT COMMITIEE ON INTELLIGENCE
SMALL BUSINESS AND
ENTREPRENEURSHIP

March 20, 2014

Mr. Neil Gillespie

8092 Sw 115th Loop, Ocala, FI
Marion, FL 3448 I
Dear Mr.

Gillespie~

You wrote to me regarding your home loan modification. A member of my staff

was advised by Bank of America that it mailed you a response to your concerns on March
18,2014.
Should you require further assistance with this matter or with any other issues
pertaining to the federal government, I am at your service. You may contact my staff at
(305) 4 18-8553 or toll-free in Florida by calling (866) 630-7106. I hope you find this
information helpful.
Thank you for sharing your concerns with me and the opportunity to serve you.
am humbled by my responsibilities in the United States Senate, and I will continue to
work on behalf of our state of Florida.
Sincerely,

Ivlarco Rubio
United States Senator
MR/ga
WF #1647638

~~

Bank ofAmerica ....

()ffice of the CJlJ) and

Preaident
Enterpri.. ('''ustomer RPlations

March 12, 2014

Mr. Neil Gillespie

8092 Southwest 11 5 th Loop
Ocala, FL 34481

Contact Us:
, .336.333.7329
Service Request Number:
, -48760622'

Correspondence received on: March 04, 2014

Page 1 of 2

Dear Mr. Gillespie:

The Office of the CEO and President at Bank of America has received your correspondence
related to our customer and his or her loan.

Privacy is important to us
Our customers' privacy is a top priority. Due to customer privacy laws and our own strict privacy
policy, we can provide customer account information only to our customers and third parties
that our customers have authorized to receive information. Since we do not have such written
authorization from our customer for you, we are unable to provide you with any information, at
this time.

For more information about

help for homeowners, visit
bankofamerica.com/
homeloanhelp or
makinghomeaffordable.gov
To check on the status of a
loan modification, go to
bankofamerica.com/
loanhelpstatus

If you have any questions

If you have questions or wish to submit a form of third party authorization, you may contact me.
My phone number is 1.336.333.7329, and I'm available Monday through Friday from 8 a.m. to 5
p.m. Eastern.
Sincerely,

Anthony Boney
Customer Advocate
Office of the CEO and President

cc: Ms. Gina Alonso, the Office of U.S. Senator Marco Rubio

Bank of America., NC1-007-58-16

100 N TRYON ~~~ CHARLOTTE NC 28255-0001
ORet:yded PAper

We want you to know

March 12, 2014

Bank of America, N.A. is required by law to inform you that this communication is from a debt collector.
If you are currently in a bankruptcy proceeding, or have previously obtained a discharge of this debt under
applicable bankruptcy law, this notice is for information only and is not an attempt to collect the debt, a
demand for payment, or an attempt to impose personal liability for that debt. You are not obligated to
discuss your home loan with us or enter into a loan modification or other loan-assistance program. You
should consult with your bankruptcy attorney or other advisor about your legal rights and options.
Mortgages funded and administered by an tit Equal Housing Lender.
OProtect your personal information before recycling this document.

Contact Us:
1.336.333.7329
Service Request Number:
1-487606221
Page 2 of 2

Bank of AmeriaL, NCI-0<Y7-58-16

100 N TRYON ~-r, CHARU.YrTE NC 28255-0001
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BankofAmerica . .
Off'1OO of the (~I) and President

Enterprise (..u.tomer Relation

March 19, 2014

Mr. Neil Gillespie

8092 Southwest 11 Sth Loop
Ocala, FL 34481

Contact Us:
1.336.333.7329

Service Request Number:

1-48961 4826

Correspondence received on: March 13, 2014

Page 1 of 2

Dear Mr. Gillespie:

The Office of the CEO and President at Bank of America has received your correspondence
related to our customer and his or her loan.

Privacy is important to us
Our customers' privacy is a top priority. Due to customer privacy laws and our own strict privacy
policy, we can provide customer account information only to our customers and third parties
that our customers have authorized to receive information. Since we do not have such written
authorization from our customer for you, we are unable to provide you with any information at
this time.

For more information about

help for homeowners, visit
bankofamerica.com/
homeloanhelp or
makinghomeaffordable.gov

To check on the status of a

loan modification, go to
bankofamerica.com/
loanhelpstatus

Our third party authorization requirements have been updated and can no longer accept a
durable power of attorney as authorization. Once we receive a letter of testimony or documents
from court showing that you are executor of the Estate or appointed through probate court we
will be able to discuss account details with you.

If you have any questions

If you have questions or wish to submit a form of third party authorization, you may contact me.
My phone number is 1.336.333.7329, and I'm available Monday through Friday from 8 a.m. to
Sp.m. Eastern.
Sincerely,

~~~
Anthony Boney
Customer Advocate
Office of the CEO and President
cc: Office of U.S. Senator Marco Rubio

Bank of America, NC1-007-58-16

100 N TRYON ~~, CHARLOTTE NC 28255-0001
ORecydcd Paper

March 19, 2014

We want you to know

Bank of America, N.A. is required by law to inform you that this communication is from a debt collector.
If you are currently in a bankruptcy proceeding, or have previously obtained a discharge of this debt under
applicable bankruptcy law, this notice is for information only and is not an attempt to collect the debt, a
demand for payment, or an attempt to impose personal liability for that debt. You are not obligated to
discuss your home loan with us or enter into a loan modification or other loan-assistance program. You
should consult with your bankruptcy attorney or other advisor about your legal rights and options.

Contact Us:
1.336.333.7329

Service Request Number:

1-489614826

Page 2 of 2

Mortgages funded and administered by an tit Equal Housing Lender.

OProtect your personal information before recycling this document.

Bank of AmeriC3ry NC1-007-58-16

100 N TRYON h-r, CHARLOTTE NC 28255-0001

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March 19, 2013

Neil Gillespie
8092 SW 115th Loop
Ocala, FL 34481
Re: Complaint: 120914-000082
Dear Neil Gillespie:
The Consumer Financial Protection Bureau (CFPB) would like to take the opportunity to
provide you with an update about the complaint you filed that we received regarding
Bank of America, on September 14, 2012.
Our records reflect the following:
You reported:
Recently we found a material alteration to our HECM reverse mortgage made
by interlineation after execution. Please take notice that we do not ratify the
change. The interlineation is a hand-written alteration, not initialed and not
dated, and vitiates the mortgage.
The interlineation is an attempt to add a new party to the reverse mortgage,
Penelope M. Gillespie individually. The interlineation recently came to our
attention when an attorney we consulted found the altered mortgage on the
Marion County Clerk's website. This mortgagee document differs from the
mortgage documents we signed June 5, 2008 with no interlineation. On January
15, 2009 Bank of America provided us with copies of the mortgage documents
that have no interlineation. Therefore I conclude that the interlineation is
evidence of fraud by the lender and/or lender-affiliated parties.
You requested that the agreement be found to be void and unenforceable.
We forwarded your complaint to Bank of America for review, requesting them to
consider the resolution you requested and respond within fifteen days. Bank of America
reviewed your complaint and your requested resolution and provided the following
response on October 1, 2012:
Laws that govern customer privacy prevent us from providing you with details
about any relationship we may have with any customer without first obtaining

the written consent of such customer. Since our records indicate that no written
authorization has been received to date from the person on whose behalf you
are inquiring, we are unable to discuss any information with you at this time.
Please provide a copy of the will naming the third party as the executor or the
letters of testamentary naming you as the authorized representative. We will
respond to the concerns raised in your correspondence once the
aforementioned documents are provided.
If you wish to submit the will or the letters of testamentary, you can fax them
directly to me at 1.877.373.7139. Please feel free to contact me directly at
1.972.526.3604. I am available Monday through Friday, 7:30 a.m. to 4:30 p.m.
Central.
The Consumer Response Team requested additional information from Bank of America,
including a response to documents you submitted, concerning this matter. Bank of
America responded by providing a letter addressed to you and dated February 1, 2012.
The letter stated, in part:
Our records indicate that we do not have proper authorization to disclose any
information to you regarding Ms. Penelope M. Gillespies account. Bank of
America values and guards our customers privacy and financial information
and, therefore, does not provide customer-specific information to unauthorized
third parties.
Further, laws that govern customer privacy prevent us from providing you with
details about any relationship we may have with any customer without first
obtaining the written consent of such customer. Our records confirm that we
have not received any written authorization from Ms. Gillespie, therefore, we
are unable to discuss any information about her account with you. In order to
obtain a response to the concerns raised in your correspondence, please provide
us with a copy of a proper third party authorization form naming you as Ms.
Gillespies authorized representative. You may contact Bank of Americas
Reverse Mortgage Department at 1.866.863.5224 for instructions on how to
submit these necessary documents.
Although the CFPB allows for the filing of complaints on behalf of others, Bank of
America has indicated that it is unable to further process the complaint without
authorization from the consumer requesting the resolution above. Unfortunately, no
further action will be taken on your complaint at this time. Our review was limited to
federal consumer financial protection laws within the CFPBs authority. Our disposition
should not be considered to be a determination with respect to the validity of your
complaint. We hope you understand that the CFPB does not represent individuals in

legal matters. If you believe this does not resolve your complaint, you are of course free
to contact a private attorney about this matter or file your own case in court.
For more information on mortgages, or any other consumer financial product or service,
visit Ask CFPB at www.consumerfinance.gov/askcfpb/.
Specifically, please see the following entries from Ask CFPB:
Housing counselors are permitted to charge for reverse mortgage counseling, but the
agency must tell you about the fee before charging it, and the fee has to be reasonable.
Fees are typically about $125. Counseling agencies are also required to waive the
counseling fee if your income is less than twice the poverty level.
TIP: Make sure your reverse mortgage counselor is approved by the U.S. Department
of Urban Development (HUD). You can find HUD-approved housing counselor by
visiting HUD's counselor search page or calling HUDs housing counselor referral line
(1-800-569-4287).
TIP: If you are behind on your taxes and insurance and you are facing foreclosure, you
can receive free reverse mortgage foreclosure prevention counseling. To find a specialist
counselor, call one of the five national counseling agencies and ask for HECM
foreclosure prevention counseling:
CredAbility: 1-888-395-2664
Money Management International: 1-866-765-3328
National Council on the Aging: 1-800-510-0301
National Foundation for Credit Counseling: 1-866-363-2227
NeighborWorks America: 1-888-990-4326
If you paid someone up-front for counseling and they never provided counseling to you,
or if someone is offering you counseling only if you purchase an insurance or financial
product along with your reverse mortgage, report the agency and counselor by filing a
complaint with the CFPB, or calling 1-855-411-CFPB (2372).
http://www.consumerfinance.gov/askcfpb/232/what-will-reverse-mortgage-housingcounseling-cost.html

We take consumer complaints very seriously and are grateful for the information you
have provided throughout this process. Consumer complaints inform us about business
practices that may pose risk to consumers and assist the CFPBs supervisory,
enforcement, and rulemaking responsibilities. Hearing from engaged and proactive
consumers like you is critical to our mission. With this correspondence, we are closing
your file on this matter within Consumer Response. Please feel free to contact the CFPB
should you need help with another consumer finance matter in the future.
Thank you,
Consumer Response Team
Consumer Financial Protection Bureau
consumerfinance.gov
(855) 411-CFPB (2372)

Case: 13-11585

Date Filed:
(1 of 2)
07/25/2013

Page: 1 of 1

Case: 13-11585

Date Filed:
(2 of 2)
07/25/2013

Page: 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
ELBERT PARR TUTTLE COURT OF APPEALS BUILDING
56 Forsyth Street, N.W.
Atlanta, Georgia 30303
John Ley
Clerk of Court

For rules and forms visit

www.ca11.uscourts.gov

July 25, 2013

Neil J. Gillespie
8092 SW 115TH LOOP
OCALA, FL 34481
Appeal Number: 13-11585-B
Case Style: Reverse Mortgage Solutions, In v. Neil Gillespie, et al
District Court Docket No: 5:13-cv-00058-WTH-PRL
This Court requires all counsel to file documents electronically using the Electronic Case
Files ("ECF") system, unless exempted for good cause.
The enclosed order has been ENTERED.
Sincerely,
JOHN LEY, Clerk of Court
Reply to: Melanie Gaddis, B/rvg
Phone #: (404) 335-6187
MOT-2 Notice of Court Action

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 1 of 7 PageID 722

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
REVERSE MORTGAGE SOLUTIONS,
INC.,
Plaintiff,
-vs-

Case No. 5:13-cv-58-Oc-10PRL

NEIL J. GILLESPIE AS CO-TRUSTEES,

MARK GILLESPIE AS CO-TRUSTEES,
OAK
RUN
HOMEOWNERS
ASSOCIATION, INC., UNITED STATES
OF AMERICA, ELIZABETH BAUERLE,
MARK GILLESPIE, NEIL J. GILLESPIE,
DEVELOPMENT & CONSTRUCTION
CORPORATION OF AMERICA,
UNKNOWN SPOUSE, UNKNOWN
SPOUSE, UNKNOWN SPOUSE,
UNKNOWN SETTLORS AND/OR
/BENEFICIARIES, UNKNOWN
TRUSTEES, SETTLERS AND
BENEFCIARIES, UNKNOWN TENANT
IN POSSESSION 1 AND UNKNOWN
TENANT IN POSSESSION 2,
Defendants.
_____________________________________/
ORDER REMANDING CASE
On January 2, 2013, the Plaintiff, Reverse Mortgage Solutions, Inc., filed a
foreclosure action in the Circuit Court of the Fifth Judicial Circuit, in and for Marion
County, Florida against numerous defendants, both known and unknown (Doc. 2). The
Complaint alleges state court causes of action only, pursuant to Fla. Stat. 26.012.
On February 4, 2013, one of the Defendants, Neil. J. Gillespie, proceeding pro

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 2 of 7 PageID 723

se, filed a Notice of Removal pursuant to 28 U.S.C. 1441(a), 28 U.S.C. 1331, and
5 U.S.C. 702 (Doc. 1). The Notice of Removal states that Mr. Gillespie intends to
raise various counterclaims and affirmative defenses under the Administrative
Procedures Act, 5 U.S.C. 701, et seq., and intends to file cross-claims against
Defendant United States of America, Department of Housing and Urban Development
(HUD) (Id., pp. 2-3). Mr. Gillespie has also filed a motion for leave to proceed in
forma pauperis (Doc. 6).
On February 13, 2013, the United States Magistrate Judge issued a Report and
Recommendation (Doc. 10), which recommended, pursuant to 28 U.S.C. 1915(e)(2),
that the motion to proceed in forma pauperis be denied, and this case be remanded to
state court for lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(h)(3).
Specifically, the Magistrate Judge held that remand is proper both because this Court
lacks subject matter jurisdiction under the well-pleaded complaint rule, see Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S. Ct. 2425, 2429 (1987), and because there
is a procedural defect in the notice of removal.
Mr. Gillespie has filed 58 pages of objections and exhibits challenging the
Magistrate Judges Report and Recommendation, as well as seeking recusal of both
the undersigned and the Magistrate Judge (Doc. 18). Although typically the Court
would afford the Plaintiff leave to respond to the Objections, the law and the facts of
this case conclusively establish that this Court is without subject matter jurisdiction,
such that it would be a waste of attorney and judicial resources to wait for a response.
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Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 3 of 7 PageID 724

The Magistrate Judge noted that the decision whether a claim arises under
federal law for purposes of 1331 is generally determined by the well-pleaded
complaint rule, which provides that federal jurisdiction exists only when a federal
question is presented on the face of the plaintiffs properly pleaded complaint. Smith
v. GTE Corp., 236 F.3d 1292, 1310 (11th Cir. 2001) (citing Caterpillar, 482 U.S. at
392). Under the well-pleaded complaint rule, merely having a federal defense to a
state law claim is insufficient to support removal. Lontz v. Tharp, 413 F.3d 435, 439
(4th Cir. 2005). Moreover, the Supreme Court has held that a counterclaim cannot
serve as the basis for arising under federal question jurisdiction. Holmes Group, Inc.
v. Vornado Air Circulation Sys., Inc., 535 U.S. 826, 832, 122 S. Ct. 1889, 1894 (2002).
See also Mortgage Electronic Registration Systems, Inc. v. Malugen, No. 6:11-cv-2033Orl-22, 2012 WL 1382265 at * 8 (M.D. Fla. Apr. 3, 2012) (Thus, the law is well settled
that federal claims raised in a counterclaim may not serve as a basis for removal
jurisdiction.).
The Magistrate Judge found that the only issues of federal law in this case were
raised in Mr. Gillespies anticipated defenses or other such claim, and thus, under the
well-pleaded complaint rule, this Court was without subject matter jurisdiction (Doc. 10,
p. 5). Mr. Gillespies primary objections focus on the fact that he intends to raise
questions of federal law not only in his counterclaims and defenses, but also in crossclaims he intends to assert against HUD. This is a distinction without a difference.
The basic principle is that defendants may remove only on the basis of claims brought
-3-

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 4 of 7 PageID 725

against them and not on the basis of counterclaims, cross-claims, or defenses asserted
by them. Image 1 Studios, LLC v. Youngblood, No. 6:12-cv-1570-Orl-22DAB, 2012
WL 5415629 at * 1 (M.D. Fla. Oct. 22, 2012) (quoting 14C Charles Alan Wright, Arthur
R. Miller Edward H. Cooper & Joan E. Steinman, FEDERAL PRACTICE AND PROCEDURE
3730 (4th ed. 2009)). See also Chevy Chase Bank, F.S.B. v. Carrington, No. 6:09cv-2132-Orl-31GJK, 2010 WL 1854123 at * 3 (M.D. Fla. May 10, 2010) (remanding
case to state court where the only claims that arose under federal law were contained
in the defendants cross-claims). Thus, whether Mr. Gillespie asserts a federal cause
of action in his counterclaim, affirmative defense, or cross-claim, is irrelevant for
purposes of determining subject matter jurisdiction. The Court is limited solely to a
review of the Plaintiffs Complaint, which in this case clearly and explicitly only raises
issues of state foreclosure law.1 Mr. Gillespies objection on this point shall be
Overruled.
Mr. Gillespie also objects to the Magistrate Judges finding that the notice of
removal was procedurally defective because it does not contain the consent and/or
joinder of all other Defendants in the removal. Specifically, Mr. Gillespie contends that
he is the only defendant with a real interest in this case, and that the other defendants
were neither properly joined or served. This objection is based on both hearsay and

This Order should not be interpreted as a ruling concerning whether, or to what extent, Mr.
Gillespie can sue HUD in a separate action. Rather, this Order is limited to whether the Court has
subject matter jurisdiction over the specific action that has been removed to this Court.
-4-

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 5 of 7 PageID 726

supposition on the part of Mr. Gillespie the fact remains that several other defendants
have been served and have not consented or joined in the notice of removal. This is
sufficient to warrant remand. Moreover, this objection does not change the fact that
this Court lacks subject matter jurisdiction and must remand regardless of the validity
of the procedures used for removal. This objection shall be Overruled.
Mr. Gillespie next objects to the Magistrate Judges report and recommendation,
on the ground that the mere inclusion of the United States as a defendant automatically
gives this Court subject matter jurisdiction over the entire case. Mr. Gillespie is
mistaken. Simply listing the United States as a defendant does not automatically clothe
this Court with jurisdiction rather it gives the United States the right to seek removal
of the case to federal court. Unless and until the United States seeks removal, this
Court is without jurisdiction. Moreover, the Court has reviewed the very narrow
circumstances when it would have jurisdiction over cases where the United States is
listed as a defendant, and this case does not fall within any of those circumstances.
See 28 U.S.C. 1346, 2409, 2409a. This objection will also be Overruled.
Mr. Gillespies other objections are either irrelevant (objection to the date the
Plaintiffs actually filed their complaint in state court), or redundant (arguing that his
anticipated federal cross-claims against HUD establish jurisdiction). They warrant no
further discussion, and will be Overruled. Mr. Gillespies request to amend his Notice
of Removal will also be Denied as futile because there is no set of facts or legal claims
that can be raised which would give the Court jurisdiction over this case.
-5-

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 6 of 7 PageID 727

Lastly, Mr. Gillespie seeks to recuse the undersigned and the Magistrate Judge.
Because the Court does not have subject matter jurisdiction, it would appear that this
request is now moot. In any event, the Court finds that the request is also without legal
merit. Mr. Gillespie seeks the undersigneds recusal on the basis that I have a financial
interest in Bank of America, which Mr. Gillespie contends is the real party in interest in
this case. However, Bank of America is not listed as a party, and the evidence
submitted by Mr. Gillespie, which consists of correspondence between Mr. Gillespie
and Bank of America in which Mr. Gillespie is requesting information about various
accounts, does not appear to have anything to do with this case.
Mr. Gillespie seeks recusal of the Magistrate Judge on the grounds that the
Magistrate Judges report and recommendation contains misstatements of law and fact,
and therefore calls into question the Magistrate Judges fairness and impartiality. The
Magistrate Judge has not misstated any law or facts, rather he has correctly
determined that there is no subject matter jurisdiction. Besides, any such claim would
relate to judicial acts rather than extra-judicial bias, and it is insufficient to work a
disqualification as a matter of law. And the fact that Mr. Gillespie does not agree with
the Magistrate Judges well-founded report and recommendation does not establish
any legally cognizable bias either. See 28 U.S.C. 144, 455(a), and 455(b)(1).
Accordingly, upon due consideration it is hereby ORDERED as follows:
(1)

The United States Magistrate Judges Report and Recommendation (Doc.

10) is ADOPTED, CONFIRMED, AND MADE A PART HEREOF;

-6-

Case 5:13-cv-00058-WTH-PRL Document 19 Filed 03/07/13 Page 7 of 7 PageID 728

(2)

Defendant Neil J. Gillespies Objections (Doc. 18) are OVERRULED, and

his requests for leave to amend his Notice of Removal and for recusal of the
undersigned and the Magistrate Judge are all DENIED;
(3)

Defendant Neil J. Gillespies Motion for Leave to Proceed In Forma

Pauperis (Doc. 6) is DENIED;

(4)

The Clerk is directed to remand this case to the Circuit Court of the Fifth

Judicial Circuit, in and for Marion County, Florida; and

(5)

The Clerk is further directed to enter judgment accordingly, terminate all

other pending motions, and close the file.

IT IS SO ORDERED.
DONE and ORDERED at Ocala, Florida this 7th day of March, 2013.

Copies to:

Counsel of Record
Hon. Philip R. Lammens
Maurya McSheehy

-7-