Shaun Donovan, Secretary, US Dept Housing-Urban Affairs-May-28-2014

8/12/2019 Shaun Donovan, Secretary, US Dept Housing-Urban Affairs-May-28-2014

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Shaun Donovan, Secretary May 28, 2014

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

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 youwith details about any relationship we may have with anycustomer 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. Posner-

Gerstenhaber, 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 Telephone: 352-854-7807

Ocala, Florida 34481 Email: [email protected] Enclosures


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VIA Email to [email protected] May 28, 2014

Bill Tolbert/FOIA Liaison

Senior Management Analyst

Office of the Field Office Director

HUD Oklahoma City Field Office301 NW 6

thStreet, 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 JenkinsHUD 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, [email protected], FOIA Specialist, U.S. Department of Housing and

Urban Development (HUD), Office of the Executive Secretariat

Benjamin Shultz, [email protected], Department of Justice Attorney for HUDMichael Raab, [email protected], 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 counselingSeparate 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.


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Bill Tolbert/HUD FOIA Liaison May 28, 2014

HUD Senior Management Analyst 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 HomeEquity 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: [email protected] enclosures


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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.


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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


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March 24, 2014

The Honorable Marco Rubio

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

Re: Complaint 140304-000750 (Gillespie)

Dear Senator Rubio:

Thank you for contacting the Consumer Financial Protection Bureau (CFPB) and providing anopportunity for us to assist your constituent, Neil Gillespie, with a complaint filed. Our Office ofConsumer Response has reviewed the complaint.

Currently, the Department of Housing and Urban Development (HUD) is handling complaints relatedto 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 5204Washington, DC 20410www.portal.hud.gov(800) 669-9777

With this correspondence, we are closing the file on this matter within Consumer Response. Pleasefeel free to contact the CFPBs Intergovernment Team should you need help with another consumerfinance matter in the future.

Thank you,

Intergovernment TeamOffice of Consumer Response(202) 435-9400


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M RCO RUBIO COMMITTEES:FLORID COMMERCE SCIENCE AND

TRANSPORTATIONFOREIGN RELATIONStinitm ~ t t r s ~ r n a t f SELECT OMMITIEE ON INTELLIGEN

WASHINGTON DC 20510 SMALL BUSINESS ANDENTREPRENEURSHIP

March 20, 2014

Mr. Neil Gillespie8092 Sw 115th Loop, Ocala, IMarion, FL 3448 IDear Mr. i l l e s p i e ~

You wrote to me regarding your home loan modification. A member o my staffwas advised by Bank o America that it mailed you a response to your concerns on March18,2014.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) 418-8553 or toll-free in Florida by calling (866) 630-7106. I hope you find thisinformation 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 towork on behalfo our state o Florida.

Sincerely,

Ivlarco RubioUnited States SenatorMR/gaWF 1647638


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BankofAmerica)ffice of the CJlJ and PreaidentEnterpri ( ustomer RPlations

Mr. Neil Gillespie8092 Southwest 11 5th LoopOcala FL 34481

Correspondence received on: March 04, 2014Dear Mr. Gillespie:The Office of the CEO and President at Bank of America has received your correspondencerelated to our customer and his or her loan.Privacy is important to usOur customers privacy is a top priority. Due to customer privacy laws and our own strict privacypolicy, we can provide customer account information only to our customers and third partiesthat our customers have authorized to receive information. Since we do not have such writtenauthorization from our customer for you, we are unable to provide you with any information, atthis time.If you have any questionsIf 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 5p.m. Eastern.Sincerely,

Anthony BoneyCustomer AdvocateOffice of the CEO and President

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

March 12, 2014Contact Us:, .336.333.7329Service Request Number:, -48760622Page 1 of 2

For more information abouthelp for homeowners, visitbankofamerica.com/homeloanhelp ormakinghomeaffordable.govTo check on the status of aloan modification go tobankofamerica.com/loanhelpstatus

Bank of America., NC1-007-58-16100 N TRYON CHARLOTTE NC 28255-0001

ORet:yded PAper


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We w nt you to nowBank 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 deb t underapplicable bankruptcy law this notice is for information only and is not an attempt to collect the debt ademand for payment or an attempt to impose personal liability for that debt. You are not obligated todiscuss your home loan with us or enter into a loan modification or other loan-assistance program. Youshould 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.

March 12 2 14Contact Us:1.336.333.7329Service Request Number1-487606221Page 2 of 2

Bank of AmeriaL NCI 0


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BankofAmerica Off 1OO of the ~ I and PresidentEnterprise (..u.tomer Relation

Mr. Neil Gillespie8092 Southwest 11 th LoopOcala FL 34481

Correspondence received on: March 13, 2014Dear Mr. Gillespie:The Office of the CEO and President at Bank of America has received your correspondencerelated to our customer and his or her loan.Privacy is important to usOur customers privacy is a top priority. Due to customer privacy laws and our own strict privacypolicy, we can provide customer account information only to our customers and third partiesthat our customers have authorized to receive information. Since we do not have such writtenauthorization from our customer for you, we are unable to provide you with any informat ion atthis time.Our third party authorization requirements have been updated and can no longer accept adurable power of attorney as authorization. Once we receive a letter of testimony or documentsfrom court showing that you are executor of the Estate or appointed through probate court wewill be able to discuss account details with you.If you have any questionsIf 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. toSp.m. Eastern.Sincerely,

Anthony BoneyCustomer AdvocateOffice of the CEO and Presidentcc: Office of U.S. Senator Marco Rubio

March 19, 2014Contact Us1.336.333.7329Service Request Number:1-48961 48 6Page 1 of 2

For more information abouthelp for homeowners, visitbankofamerica.com/homeloanhelp ormakinghomeaffordable.govTo check on the status of aloan modification, go tobankofamerica.com/loanhelpstatus

Bank of America NC1-007-58-16100 N TRYON CHARLOTTE NC 28255-0001

ORecydcd Paper


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We w nt y u t knowBank 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 deb t underapplicable bankruptcy law this notice is for information only and is not an attempt to collect the debt ademand for payment or an attempt to impose personal liability for that debt. You are not obligated todiscuss your home loan with us or enter into a loan modification or other loan-assistance program. Youshould consult with your bankruptcy attorney or other advisor about your legal rights and options.Mortgages funded and administered by an t i t Equal Housing Lender.OProtect your personal information before recycling this document.

March 19 2 14Contact Us:1.336.333.7329Service Request Number:1-489614826Page 2 of 2

Bank o AmeriC3ry NC1-007-58-1100 N TRYO h-r CHARLOTTE NC 28255-000


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March 19, 2013

Neil Gillespie8092 SW 115th LoopOcala, FL 34481

Re: Complaint: 120914-000082

Dear Neil Gillespie:

The Consumer Financial Protection Bureau (CFPB) would like to take the opportunity toprovide you with an update about the complaint you filed that we received regardingBank of America, on September 14, 2012.

Our records reflect the following:

You reported:

Recently we found a material alteration to our HECM reverse mortgage madeby interlineation after execution. Please take notice that we do not ratify thechange. The interlineation is a hand-written alteration, not initialed and notdated, 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 ourattention when an attorney we consulted found the altered mortgage on theMarion County Clerk's website. This mortgagee document differs from themortgage documents we signed June 5, 2008 with no interlineation. On January15, 2009 Bank of America provided us with copies of the mortgage documentsthat have no interlineation. Therefore I conclude that the interlineation isevidence 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 Americareviewed your complaint and your requested resolution and provided the followingresponse on October 1, 2012:

Laws that govern customer privacy prevent us from providing you with detailsabout any relationship we may have with any customer without first obtaining


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the written consent of such customer. Since our records indicate that no writtenauthorization has been received to date from the person on whose behalf youare 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 theletters of testamentary naming you as the authorized representative. We willrespond to the concerns raised in your correspondence once theaforementioned documents are provided.

If you wish to submit the will or the letters of testamentary, you can fax themdirectly to me at 1.877.373.7139. Please feel free to contact me directly at1.972.526.3604. 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 ofAmerica 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 anyinformation to you regarding Ms. Penelope M. Gillespies account. Bank ofAmerica values and guards our customers privacy and financial informationand, therefore, does not provide customer-specific information to unauthorizedthird parties.

Further, laws that govern customer privacy prevent us from providing you with

details about any relationship we may have with any customer without firstobtaining the written consent of such customer. Our records confirm that wehave not received any written authorization from Ms. Gillespie, therefore, weare unable to discuss any information about her account with you. In order toobtain a response to the concerns raised in your correspondence, please provideus with a copy of a proper third party authorization form naming you as Ms.Gillespies authorized representative. You may contact Bank of AmericasReverse Mortgage Department at 1.866.863.5224 for instructions on how tosubmit these necessary documents.

Although the CFPB allows for the filing of complaints on behalf of others, Bank ofAmerica has indicated that it is unable to further process the complaint without

authorization from the consumer requesting the resolution above. Unfortunately, nofurther action will be taken on your complaint at this time. Our review was limited tofederal consumer financial protection laws within the CFPBs authority. Our dispositionshould not be considered to be a determination with respect to the validity of yourcomplaint. We hope you understand that the CFPB does not represent individuals in


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legal matters. If you believe this does not resolve your complaint, you are of course freeto 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 theagency 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 thecounseling fee if your income is less than twice the poverty level.

TIP: Make sure your reverse mortgage counselor is approved by the U.S. Departmentof Urban Development (HUD). You can find HUD-approved housing counselor byvisiting 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, youcan receive free reverse mortgage foreclosure prevention counseling. To find a specialistcounselor, call one of the five national counseling agencies and ask for HECMforeclosure prevention counseling:

CredAbility: 1-888-395-2664Money Management International: 1-866-765-3328

National Council on the Aging: 1-800-510-0301National Foundation for Credit Counseling: 1-866-363-2227NeighborWorks 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-housing-counseling-cost.html


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We take consumer complaints very seriously and are grateful for the information youhave provided throughout this process. Consumer complaints inform us about businesspractices that may pose risk to consumers and assist the CFPBs supervisory,enforcement, and rulemaking responsibilities. Hearing from engaged and proactiveconsumers like you is critical to our mission. With this correspondence, we are closingyour file on this matter within Consumer Response. Please feel free to contact the CFPBshould you need help with another consumer finance matter in the future.

Thank you,Consumer Response Team

Consumer Financial Protection Bureauconsumerfinance.gov(855) 411-CFPB (2372)
http://www.consumerfinance.gov/http://www.consumerfinance.gov/http://www.consumerfinance.gov/


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Case: 13-11585 Date Filed: 07/25/2013 Page: 1 of 1(1 of 2)


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UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING56 Forsyth Street, N.W.Atlanta, Georgia 30303

John Ley

Clerk of Court

July 25, 2013

For rules and forms visit

www.ca11.uscourts.gov

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/rvgPhone #: (404) 335-6187

MOT-2 Notice of Court Action

Case: 13-11585 Date Filed: 07/25/2013 Page: 1 of 1(2 of 2)
http://www.ca11.uscourts.gov/http://www.ca11.uscourts.gov/http://www.ca11.uscourts.gov/


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UNITED STATES DISTRICT COURTMIDDLE 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,O A K R U N H O M E O W N E R S

ASSOCIATION, INC., UNITED STATESOF AMERICA, ELIZABETH BAUERLE,MARK GILLESPIE, NEIL J. GILLESPIE,DEVELOPMENT & CONSTRUCTIONCORPORATION OF AMERICA,UNKNOWN SPOUSE, UNKNOWNSPOUSE, UNKNOWN SPOUSE,UNKNOWN SETTLORS AND/OR/ B E N E F I C I A R I E S , U N K N O W NTRUSTEES, SETTLERS ANDBENEFCIARIES, UNKNOWN TENANTIN POSSESSION 1 AND UNKNOWNTENANT 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 1 of 7 PageID 722


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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 pauperisbe 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 Cour

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

-2-



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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. 6:09-

cv-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

1This Order should not be interpreted as a ruling concerning whether, or to what extent, MrGillespie can sue HUD in a separate action. Rather, this Order is limited to whether the Court hassubject matter jurisdiction over the specific action that has been removed to this Court.

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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 tha

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 remova

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.

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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 lega

merit. Mr. Gillespie seeks the undersigneds recusal on the basis that I have a financia

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;

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(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 al

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 RecordHon. Philip R. LammensMaurya McSheehy

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Shaun Donovan, Secretary, US Dept Housing-Urban Affairs-May-28-2014

Documents

Transcript of Shaun Donovan, Secretary, US Dept Housing-Urban Affairs-May-28-2014