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IN THE CIRCUIT COURT OF THE FIFTH ruDICIAL

CIRCUIT IN AND FOR MARION COUNTY Fl~ORIDA

REVERSE MORTGAGE SOLUTIONS, INC.

Plaintiff

VS. CASE NO.: 2013-CA-OOO"l J 5

MARK. GILLESPIE, ET.AL.

Defendants.
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DEFENDANT MARK GILLESPIE'S VERIFIED MOTION TO V,LO\CATE FINAL

JUDGMENT OF FORECLOSURE AND CANCEL SEPTEMBER 19, 2017

FORECLOSURE SALE

COMES NOW the Defendant, 'M.ARK GILLESPIE, by and through undersigned

counsel and hereby files this his Verified Motion to Vacate Final Judgment of Foreclosure and

Cancel the September 19, 2017 Foreclosure Sale and in support thereof states as follows:

1. On July 18) 2017, a Non-Jury Trial was conducted in the above-noted matter, and

a Final Judgment of Foreclosure was entered and a foreclosure sale was scheduled for Septembe~

19,2017.

2. Florida Rule of Civil Procedme 1.540 affords relief from a Final Judgnlent due to

the following: (1) ~{istake, inadvertence~ swprise, or excusable neglect~ (2) newly discovered

evidence which by due diligence could not have been discovered in time to move for a new trial

or rehearing; (3) fraud (whether heretofore denominated intrinsic or extrinsic)., misrepresentation,

or other misconduct of an adverse party; (4) that the judgment or decree is void~ or (5) that the

judgment or decree has been satisfied, released) or discharged, or a pnor judgn1ent or decree

It
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:.: :.: . : . : :-
upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that

the judgnlent or decree should have prospective application.

3. Because the Plaintiff, Reverse Mortgage Solutions, Inc.) failed to establish the

occurrence of a condition precedent to its right to foreclose on the subject property, the Final

Judgment entered on July 18:- 2017 is void.

4. On June 5) 2008) Mrs. Penelope Gillespie signed and executed an adjustable rate

note secured by a home equity conversion mortgage, or what is commonly referred to as a

"reverse mortgage." Mrs. Gillespie's two sons, Mark J. Gillespie and Neil Gillespie also signed

the above-noted note as uco-borrowers". A reverse mortgage allows elderly homeowners to

receive monthly payments from a lender based upon the homeowners' equity in their principal

residence. Instead of the more conventional mortgage arrangement - where the borrower

receives a lump sum from a lender, and then repays the lender over time with monthly payments

- generally, in a reverse mortgage arrangement, the lender makes monthly payments to the

elderly homeowners) and the homeowners' obligation to repay the lender ripens only upon the

homeowners' death or when the homeowners move from their home. See.. e.g., Bennett v.

Donovan, 703 F.3d 582) 584-85 (D.C. Cir. 2013).

5. Since Mark J. Gillespie and Neil Gillespie are co-borrowers under the mortgage)

the Final Judgment of Foreclosure entered on July 18, 2017 should never have been entered, and

is de facto a void judgment, because under the ter.ms of the reverse mortgage, foreclosure is

prohibited until either Mark J. Gillespie or Neil Gillespie dies, or until one ofthern no longer

nlaintains the property as his principal residence.

6. As of the filing of this Motion, both Mark J. Gillespie and Neil Gillespie are both

very much alive, and Neil Gillespie still maintains the subject property as his principal residence.

.. ~_ _w,. , .........."'._..._ ._ _ _
7. It is axiomatic that in a mortgage foreclosure action a plaintiff must plead and

prove the occurrence of all conditions precedent. 5'ee Konsulian v. Busey Bank, N.A~., 61 So. 3d

1283, 1285 (Fla. 2d DCA 2011).

8. Consistent with the requisites of 12 U.S.C. ] 715z-20(j) governing reverse

mortgages insured by I-IUD~ the subject mortgage contains plain language expressly providing as

follows:

(j) Safeguard to prevent displacement of homeowner

The Secretary may not insure a honle equity conversion mortgage under this
section Wlless such mortgage provides that the homeowner's obligation to
satisfy the loan obligation is deferred until the homeowner's death, the sale of
the home, or the OCCUJTenCe of other events specified in regulations of the
Secretary. For purposes of this subsection, the term "homeowner" includes
the spouse of a conditioning the lender's acceleration and foreclosure rights
n
on the death of any "Borrower whose principal residence is the property
encumbered by the Inortgage.

9. Because Mark J. Gillespie and Neil Gillespie) the co-borrowers) are both still

alive, and because Mrs. Penelope Gillespie's death is the sole ground alleged for Reverse

Mortgage Solutions' acceleration and foreclosure, then a condition precedent to the lender's nght

to foreclose has not occurred, thereby precl'uding the lender~s foreclosure action at the outset.

10. A judgment is void, as a matter of law, where the Cou.rt rendering the judgment

lacked jurisdiction, or where a party lacked proper notice that the other party applied to the COUIt

for a Final Judgment. Windell v. Dorr, 497 SO.2d 940 (Fla. 1st DCA 1986).

11. Because a condition precedent to the Plaintiff., Reverse Mortgage Solutions,

attempt at acceleration and foreclosure had not occurred, the Plaintiff had no standing to even

bring this action, thus rendering the July 18) 2017 Final Judgment of Foreclosure void.

12. Furthermore, Rule 1.540 (b) (4) specifically provides for relief from a void Final

Judgment. On a proper motion, a trial court must set aside a void judgment, and Florida Courts
have routinely held that a trial court has no discretion and is obligated to vacate such ajudgment.

See Horton v. Rodriguez Espaillat Y Asocildos, 926 So.2d. 436 (Fla. 3rd DCA 2006).

13. The Defendant, MARK J. GILLESPIE, hereby requests that this Honorable

Court vacate the Final Judgment of Foreclosu.re entered on July 18, 2017 and enter an Order

canceHin.g the foreclosure sale scheduJ ed tor September 19, 2017,

WHEREFORE, the Defendant, respectfully requests that the Court enter its Order

granting the instant Motion, vacating the Final Judgment of Foreclosure and directing the Clerk

to cancel the September 19, 2017 foreclosure sale in this matter and providing such other and

further relief as it deems just and proper

DATED this Ia day of August, 2017

lsi Justln R. Infuma Esq., LL.M.


Justin R. Infurna, Esq., LL.M
The Infurna Law Firm, P.A
Florida Bar. No. 0084284
Attorney for Defendants
121 South Orange Ave., Ste. 1500
Orlando, Florida 32801
Telephone: (800)-774-1560
Fax: (407)-386-3419
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VERIFICATION

I decla.e nnde." penalty of perjury that I have read the foregoing Vetified Motion
and that the fa~ts alleged are true and accurate to the best of my knowledge and
belief.
Sworn and subscribed before me on, August.1O-, 2017 by Mark J. Gillespie) who--UL)..
is .personally known to me \;)leA produced If!YPs" \x'\\JeQ \~~s
identification and who took an oath.

'. .' NOHELY DOMI.NG.UEZ


Notary Public
'TATE 0' TIXAI
. .1Ifc--.. . . . . .

. 1Df111t1U1t

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and conect copy of this docunlent is being

served on the date of the filing of this document via the e-portaJ to all parties of record.

Is/ Juab" R. Infyml


Justin R. Infuma, Attorney
Filing # 60311920 E-Filed 08/11/2017 04:27:56 PM

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