Florida Bar UPL Case No. 20133090 (5) Appendix UPL-B

RESPONSE OF NEIL J. GILLESPIE TO THE FLORIDA BAR UNLICENSED PRACTICE OF LAW INVESTIGATION NO.
20133090(5) THE FLORIDA BAR, Ghunise L. Coaxum, UPL Bar Counsel Unlicensed Practice of Law Department, Orlando Branch Office _____________________________________/ Unlicensed Practice of Law Investigation of Neil J. Gillespie, Case No. 20133090(5)
Posted on Scribd: http://www.scribd.com/doc/204858305/
Separate Volume Appendix UPL-B

Gillespie Family Living Trust; Last Will and Testament of Penelope Gillespie; email seeking wrongful death representation; transcript, legal advice, CLSMF Appendix 1 Notice of Filing (Doc. 4) September 20, 2011. Estate of Penelope Gillespie, et al. v. Thirteenth Judicial Circuit Florida et al, Case 5:11-cv-539-WTH-TBS U.S. District Court, Middle District of Florida, Ocala Division. 1. Certified copy, Last Will and Testament of Penelope Gillespie, the Decedent. 2. Certificate of Death, Penelope Gillespie, the Decedent. 3. Authorization of Mark Gillespie to Neil Gillespie to proceed as personal representative of Penelope Gillespie, the Decedent. Case 5:11-cv-00539-WTH-TBS Document 4 Filed 09/20/11 Page 1 of 8 PageID 113 Appendix 2 The Gillespie Family Living Trust Agreement Dated February 10, 1997 (Doc 3) as filed with Neil Gillespies affidavit of indigency in case 5:11-cv-00539.
Case 5:11-cv-00539-WTH-TBS Document 3 Filed 09/20/11 Page 1 of 37 PageID 76 Appendix 3 Email request for representation, wrongful death, 5:11-cv-00539. Email of Neil Gillespie September 21, 2011 to the McMillen Law Firms online portal. Email Response of Scott R. McMillen September 22, 2011. Email request for representation, wrongful death, 5:11-cv-00539. Email of Neil Gillespie October 10, 2011 to John Bryan Morgan. Email response of Tim Morgan, Morgan & Morgan, October 10, 2011. Redacted online application of Neil Gillespie submitted January 17, 2013 to Community Legal Services of Mid-Florida (CLSMF). Transcript of telephonic legal advice January 24, 2013 by Mr. Craig H. Benson on behalf of Community Legal Services of Mid-Florida (CLSMF).
Appendix 4.
Appendix 5
Appendix 6
Case 5:11-cv-00539-WTH-TBS Document 4
Filed 09/20/11 Page 1 of 8 PageID 113
Appendix 1
Appendix 2
Page 1 of 1
Neil Gillespie
From: To: Sent: Subject: "Scott McMillen" <scott@mcmillenlawfirm.com> "Neil Gillespie" <neilgillespie@mfi.net> Thursday, September 22, 2011 7:52 AM RE: Request for representation in a wrongful death case
Thank you for visiting our site and contacting us about your possible claim. Unfortunately, my firm is swamped at the moment with the volume of work we have. As lawyers we have an ethical obligation to make sure we have the capacity to handle the work we accept. In order to ensure that we provide high quality legal services for our existing clients, we are cutting back substantially on reviewing and accepting new cases. It's possible you may have a legitimate claim, but I just can't help pursue it at this time. You might try searching for a lawyer at www.lawyers.com That site is run by Martindale-Hubbell, the largest and most respected lawyer directory in the world. Good luck. Scott R. McMillen McMillen Law Firm
From: Neil Gillespie [mailto:neilgillespie@mfi.net] Sent: Wednesday, September 21, 2011 7:43 PM To: Info Subject: Request for representation in a wrongful death case
McMillen Law Firm This is a request for representation in a wrongful death case. I filed the complaint pro se in federal court September 16, 2011 because the two year statue of limitation was due to expire. A copy of the complaint in PDF is attached. Here is the case caption and case number: Estate of Penelope Gillespie v. Thirteenth Judicial Circuit, Florida, case no. 5:11-cv-539-oc10TBS, US District Court, Middle District of Florida, Ocala, Division. You may contact me by email or as provided below. Thank you. Sincerely, Neil Gillespie 8092 SW 115th Loop Ocala, Florida 34481 (352) 854-7807 neilgillespie@mfi.net
Appendix 3
9/22/2011
Page 1 of 1
Neil Gillespie
From: To: Sent: Attach: Subject: "Neil Gillespie" <neilgillespie@mfi.net> "John Bryan Morgan" <jmorgan@forthepeople.com> Monday, October 10, 2011 12:55 AM 2011, 09-16-11, Complaint, 5.11-cv-00539, Wrongful Death.pdf This is a request for representation in a wrongful death case
Dear Mr. Morgan, This is a request for representation in a wrongful death case. I filed the complaint pro se in federal court September 16, 2011 because the two year statue of limitation was due to expire. A copy of the complaint in PDF is attached. Here is the case caption and case number: Estate of Penelope Gillespie v. Thirteenth Judicial Circuit, Florida, case no. 5:11-cv-539-oc-10TBS, US District Court, Middle District of Florida, Ocala, Division. You may contact me by email or as provided below. Thank you. Sincerely, Neil Gillespie 8092 SW 115th Loop Ocala, Florida 34481 (352) 854-7807 neilgillespie@mfi.net
Appendix 4
8/27/2013
Page 1 of 1
Neil Gillespie
From: To: Sent: Subject: "Tim Morgan" <TimMorgan@forthepeople.com> <neilgillespie@mfi.net> Monday, October 10, 2011 12:27 PM your case was reviewed
at this time this is not a case we can help you with i suggest you call the fla bar and ask for an atty that is AV rated in federal court to assist you. good luck and thank you for thinking of us. Tim Morgan Morgan & Morgan Case Control Center Director 20 N Orange Ave. Suite 1400 Orlando, FL 32801 800-768-5455 407-420-1414 Ext. 5225 407-426-2848 Fax timmorgan@forthepeople.com Skype: timmorgan58 Timmorgan2010@kodakpulse.com
CONFIDENTIALITY NOTICE: This e-mail message including attachments, if any, is intended for the person or entity to which it is addressed and may contain confidential and/or privileged material. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail and destroy all copies of the original message. Thank you.
8/27/2013
CLSMF - Online Application For Legal Help
http://applyforhelp.clsmf.org/printapp.aspx
SUMMARY OF APPLICANT SUPPLIED INFORMATION
Your application was taken: 1/17/2013 Logging back in: Unique ID Password: Name or names you have used: Neil J Gillespie
Contact Information: Address: 8092 SW 115th Loop , Ocala , FL 34481 Primary phone: 352 -854-7807 Mobile phone: Work phone: E-mail: Information about you: Birthdate: 3/19/1956 Citizenship status: A (A=Citizen, B=Eligible Alien, C=Undocumented Alien) Gender: M (M=Male, F=Female, O=Other) People in your household: 1 adult, 0 children Opposing people: Reverse Mortgage Solutions Bank of America Income Information: Social Security : $1,831 : : : Income Prospects : Asset Value: Cash, chkg, money market accts : $ Savings, Other Accounts : $ Retirement Acts over $15k : $ Other assets : $297 Other : $1,250 Expense Information: Other : $1,963 : : : : Your problem (Mortortgage Foreclosure - Predatory Lending Practices ) is located in: Marion county, FL
Appendix 5
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1/17/2013 11:07 PM
C.A.11 Appeal No. 13-11585-B District Court No: 5:13-cv-00058-oc-WTH-PRL
REVERSE MORTGAGE SOLUTIONS, INC., -vsNeil J. Gillespie as Co-Trustees, et al., -----------------------------------------/
IN RE: Telephone Conversation between Neil J. Gillespie and Craig H. Benson, Esquire. -----------------------------/
RECEIVED AT: DATE & TIME:
Home Office Telephone Extension of Neil J. Gillespie January 24, 2013 12:36 p.m.
TRANSCRIBED BY: Michael J. Borseth Court Reporter
Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
Appendix 6
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NOTE:
* * * * * * * * * * * *
Calls on home office telephone
extension (352)854-7807 are recorded for quality assurance purposes pursuant to the use exemption of Florida Statutes chapter 934, section 934.02(4)(a)(1) and the holding of Royal Health Care Servs., Inc. v. Jefferson-Pilot Life Ins. Co., 924 F.2d 215 (11th Cir. 1991)
* * * * * * * * * * AUTOMATED OPERATOR: This call is being recorded for quality assurance purposes. MR. GILLESPIE: Hello. MR. BENSON: Hello, could I speak with Neil, please. MR. GILLESPIE: Speaking. MR. BENSON: This is the attorney with Community Legal Services of Mid-Florida. MR. GILLESPIE: Hi, how are you? MR. BENSON: I'm okay. Where am I calling? MR. GILLESPIE: You're calling my home at 8092 Southwest 115th Loop. MR. BENSON: Okay. Because I got a message saying that this call is being recorded. MR. GILLESPIE: That is correct. I have Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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mental impairments and I record my calls so I can remember what was said. MR. BENSON: Okay. Just so that you're aware, though, that this -- our conversation, if you want to maintain the attorney/client privilege this -the recordings need to be not shared with anyone. MR. GILLESPIE: Thank you. MR. BENSON: If you share it with -- if you share it to anyone then you will be breaking the attorney/client privilege. What that means is that it will no longer be confidential, whatever is stated between me and you will no longer be confidential. MR. GILLESPIE: Thank you, I appreciate that. I -- it's for my own use. MR. BENSON: Okay. All right. So now I understand that you got served with a foreclosure complaint. MR. GILLESPIE: Yes, sir. MR. BENSON: On the 12th of January. MR. GILLESPIE: Yes, sir. MR. BENSON: All right. Now, who did they -whose name is as the defendant? Are you one of the defendants? MR. GILLESPIE: Yes. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. BENSON: Okay. MR. GILLESPIE: I am a -- there is a number of defendants. This is a reverse mortgage. Are you aware of that? MR. BENSON: Right. Yes, I am aware of that. MR. GILLESPIE: Okay. MR. BENSON: And it is the bank who had the reverse mortgage; is that who is suing you for the foreclosure? MR. GILLESPIE: No. It's being sued -- the plaintiff is Reverse Mortgage Solutions, Incorporated, Inc. They took an assignment of the mortgage from the Bank of America. MR. BENSON: Okay. All right. What would you say -- well, let me first start by saying, if you were served on the 12th of January, you have until the 1st of February to file a response to the Court. MR. GILLESPIE: Yes, sir. MR. BENSON: Meaning twenty days from the 12th. MR. GILLESPIE: Yes, sir, I'm working on a response. MR. BENSON: Your response -- let me tell you about your response. Your legal response needs to Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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be where you respond to each numbered paragraph in the complaint. MR. GILLESPIE: All right. MR. BENSON: So if you look at the complaint there should be a document that says: Complaint for Foreclosure. MR. GILLESPIE: It says: Verified Complaint to Foreclose Home Equity Conversion Mortgage. MR. BENSON: Right. MR. GILLESPIE: One thing I didn't understand -MR. BENSON: Uh-huh. MR. GILLESPIE: -- the case cover sheet shows this is a commercial mortgage. This is not -- or a commercial foreclosure. This is a home resident foreclosure, a homestead. MR. BENSON: Right. Well, I understand that. What you need to do, though, is respond to each of the numbered paragraphs in that particular section that says Verified Complaint Foreclosure. MR. GILLESPIE: Yes, uh-huh. MR. BENSON: And what the response has to be is that -- you see that the paragraphs are numbered. MR. GILLESPIE: Yes. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. BENSON: So you have to respond to each numbered paragraph and you need to state whether you admit to the statements, whether you deny the statements, or whether you're without knowledge to the statement. MR. GILLESPIE: I see. MR. BENSON: So on your paper you're going to write the word: Answer to Foreclosure. That's going to be the title of your document. MR. GILLESPIE: How about affirmative defenses. MR. BENSON: Not yet. Haven't reached there
MR. GILLESPIE: You mean today -MR. BENSON: I'm saying to you -- I'm saying to you, the title of your document will be called: Answer to Foreclosure. MR. GILLESPIE: Okay. MR. BENSON: And then after you write the title, Answer to Foreclosure, you would write the number of the paragraph. Like you would write, number 1. And then beside number 1 you would put the words: Either admits, denied or without acknowledge. MR. GILLESPIE: All right. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. BENSON: And you do that for all of the numbered. So it's almost like you're doing true and false. MR. GILLESPIE: Uh-huh. MR. BENSON: And what that does, that tells the Court what is in dispute in this case. MR. GILLESPIE: I mean, I have already sort of done that. I didn't know that without knowledge was a answer. MR. BENSON: Yeah, without knowledge/denied. So if, for example, if one of the statements you really don't know what they're talking about, then that's when you can put without knowledge/denied. MR. GILLESPIE: I see. Well, okay. MR. BENSON: So that is at least in terms of your special answer, that needs to be done so that Court can see what is in dispute. MR. GILLESPIE: All right. MR. BENSON: Now, since it's a reverse mortgage, who was the person once you took out the reverse mortgage? MR. GILLESPIE: Well, the -- they're claiming it was my mother's death that triggered the acceleration of debt. Although, I also am a signature on the loan, as is my brother. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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I would also say that there is an active complaint before the Consumer -- wait a minute, let me get that file. The Consumer Financial Protection Bureau. In fact, I spoke with them the other day. The complaint was made originally to HUD in August of 2009. I mean, I'm sorry, August of 2012. MR. BENSON: Uh-huh. MR. GILLESPIE: And it was just opened by the Consumer Financial Protection Bureau, I think January the 3rd or 4th of this year. MR. BENSON: Okay. So there is an active investigation? MR. GILLESPIE: Yes. MR. BENSON: Okay. MR. GILLESPIE: Because there is quite a bit of things happened that were not right. MR. BENSON: Okay. MR. GILLESPIE: I would also ask you one more thing. MR. BENSON: Sure. MR. GILLESPIE: This complaint -MR. BENSON: Uh-huh. MR. GILLESPIE: -- says -- let me just get organized here so I can speak with you. Let me Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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open up the file. The complaint, for example, talks about Exhibits A and B. MR. BENSON: Right. MR. GILLESPIE: There is nothing in there marked A and B. The exhibits, they have different numbers on them; 11 -- let's see, one is 11, one is 12, one is 32 and one is 33. So it's kind of confusing that way. MR. BENSON: Well, if they're making reference to an Exhibit A, for example, if one of the statements say that they did something in Exhibit A; when you're denying it you can say you deny and explain that there, you know, there was no Exhibit A and you demand strict proof thereof. MR. GILLESPIE: See, it says here in Count Two: Copies of the note and mortgage are attached as Exhibits A and B, respectively. Well, there is nothing there marked A and B. What they did was they took -- because I recognize the Exhibits 11, 12, 32 and 33, they're from my complaint to HUD. You see, they gave us one set of documents and then they made changes by interlineation afterwards. MR. BENSON: Um. Right, so you -- yeah, definitely you would want to deny a lot of those Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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things and also bring it to the Court's attention that they did not attach exhibits that they said they attached. MR. GILLESPIE: Uh-huh. MR. BENSON: And then after you get done with your answer, that's when you can do affirmative defenses. MR. GILLESPIE: All right. MR. BENSON: And that's when you can bring up all the things that were wrong with, you know, with their case, with their documents. MR. GILLESPIE: Uh-huh. MR. BENSON: And you still should continue to work with the -- since I have an active complaint you still need to continue to work with that. MR. GILLESPIE: With the Consumer Financial Protection Bureau? MR. BENSON: Yeah. MR. GILLESPIE: Well, I spoke with them in detail and they, they have no legal authority to do anything. At the end of their complaint process they issue some kind of letter report, that's all they do. MR. BENSON: Right. And you want that report, too, because you want to, you know, if you do -Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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what happens is when you get that report then you would know what sort of documents you would want to request from the bank. MR. GILLESPIE: Uh-huh. And like, for example, Number 4, they say: Plaintiff is entitled to enforce the note and mortgage pursuant to Florida statute 673.3011. But it's my understanding that a note is not a negotiable instrument under that statute. That's what various attorney blogs are claiming. Matt Weidner to be one of them. MR. BENSON: Um, under that statute a note is not a negotiable instrument. That is probably something that would need to be litigated. You know, that may be an issue for the Judge to take up in this specific case. MR. GILLESPIE: All right. So I guess I -can you explain to me what role your office will have in this matter. MR. BENSON: All assistance to you at this point will be to provide you advice and consultation over the phone. MR. GILLESPIE: I see. MR. BENSON: Which is what I'm providing at this point. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. GILLESPIE: I see. And what was your name, sir? MR. BENSON: My name is Craig Benson. MR. GILLESPIE: Thank you, Mr. Benson. MR. BENSON: So the answer, again, you need to file that by the 1st. At the very top of the answer you need to copy the information that they have on the complaint. MR. GILLESPIE: You mean put all the defendants? MR. BENSON: Yeah, all the defendants. And where it says: In the Circuit Court, you copy all of that information. MR. GILLESPIE: Uh-huh. Because a lot of the -- I don't understand why they're suing the developer or the homeowners association. MR. BENSON: Well, what they're doing, since it's a foreclosure they have to notify anyone who may have a claim to your home, or may some sort of interest or whatever, they have to notify all of those people that the foreclosure is -- they're filing a foreclosure and they have to sue them because what it is is that if, you know, like for example, who else, who else are they suing? MR. GILLESPIE: Well, they're suing myself and Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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my brother as co-trusties of the trust. MR. BENSON: All right. MR. GILLESPIE: The Oak Run Homeowners Association, the United States of America Department of Housing and Urban Development. Elizabeth Bauerle, my sister, my brother, and me personally. DECCA, The Development Construction Corporation of America, that is the developer. MR. BENSON: Right. And the reason why they're doing that, they're saying that, for example, if the developer has any interest in getting the home -MR. GILLESPIE: They do. MR. BENSON: Well, that's why they're being sued. MR. GILLESPIE: Uh-huh. MR. BENSON: Because if they have an interest in getting the home, if they're trying to foreclose, then they may lose their interest. MR. GILLESPIE: And then there is a number of unknown spouses. MR. BENSON: Right, yeah -MR. GILLESPIE: I don't have any contact with my sister, so I don't know really anything about her. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. BENSON: But they have to do it just in case. They don't want -- the reason why they're doing that, they don't want to file a complaint for foreclosure and let's say they were to win and then later on somebody comes up and say, oop, you can't really foreclose on the home because I have an interest in the home. MR. GILLESPIE: Uh-huh. MR. BENSON: So they have to make sure that they notify everyone. MR. GILLESPIE: And my brother, you know, and I discussed whether he should just file -- I can't think of the name of it, let me just look up -MR. BENSON: Amnesty? MR. GILLESPIE: No. A disclaimer of interest in real property. MR. BENSON: And I really can't advise you as to what your brother will do for his interest. MR. GILLESPIE: Uh-huh. MR. BENSON: I can only advise you as to what -MR. GILLESPIE: That way he would be out of the lawsuit, right? MR. BENSON: That would be a possibility, but I can't say that that would actually work for him, Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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I don't know -MR. GILLESPIE: Uh-huh. MR. BENSON: -- what his situation is. MR. GILLESPIE: And then I am wondering if it's even worthwhile keeping this trust open. The house is the only thing in the trust. None of us that are alive made the trust, we don't know why the trust was made. Probably just something they were talked into doing, I don't know. MR. BENSON: Regarding the trust, though, you would actually need to speak to a -- because I'm not a trust attorney. MR. GILLESPIE: Uh-huh. MR. BENSON: And that is a very specialized area, you would actually need to speak to a private attorney who has more knowledge about a trust. MR. GILLESPIE: All right. MR. BENSON: What you may want to do, you may want to call the Florida Bar Attorney Referral Service. MR. GILLESPIE: Yeah. MR. BENSON: And get a consultation from a private attorney. MR. GILLESPIE: Well, our family attorney is willing to speak with me. He can't represent me in Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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this because he witnessed the foreclosure, I mean the settlement when the loan was made. MR. BENSON: Okay. MR. GILLESPIE: And he is a witness. And he doesn't litigate. He is an older man and he does not step foot in a courtroom. MR. BENSON: Okay. Well, so that's what I'm saying, you need to consult with a private attorney who deals specifically with foreclosures, who deals specifically with trusts, who may be able to give you some additional guidance or even talk to you about representing you. MR. GILLESPIE: Well, I have received at least four direct mail solicitations. I guess attorneys go through the court file. And I have contacted them and some don't even respond. MR. BENSON: The Florida Bar Attorney Referral Service, what that is, that is a number from the Florida Bar. They will -- when you call them they will give you a list of attorneys in your area for the specific issue that you called them on and you call one of those attorneys. MR. GILLESPIE: Yeah, I have used that service before. MR. BENSON: Okay. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. GILLESPIE: Not very good. Most of them don't return the call and want nothing to do with the case. I mean, my experience has been that they're listed in that referral service and they're waiting for, you know, a home run case that's going to be easy. Anything where someone doesn't have money or it's a hard case, they could care less about it. That's just been my experience. I have contacted them a number of times. MR. BENSON: Well, my only other suggestion then is, you know, if you can find -- I think you're on the right track by talking to the family attorney, that is the first thing. And then see if he can recommend like another attorney that you could work with on this. MR. GILLESPIE: Yeah, I guess I'm just going to file the answer myself, although I read on the internet some attorneys advise making a Motion to Dismiss before even filing an answer. MR. BENSON: If you have grounds for a Motion to Dismiss, absolutely. If there is definitely grounds as to standing. For example, if this person who is suing you does not have standing, does not have the right to bring this case then, yes, you should do a Motion to Dismiss. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. GILLESPIE: Uh-huh. Yeah, I'm -MR. BENSON: That's what I'm saying, talk to that other attorney, the family attorney before you even file. MR. GILLESPIE: Because if I were to make a Motion to Dismiss, I wouldn't put the answer in -MR. BENSON: Correct. MR. GILLESPIE: Right? MR. BENSON: Correct. MR. GILLESPIE: And then the -MR. BENSON: The Motion to Dismiss, you don't do the answer. MR. GILLESPIE: And the other question I had, would it be worthwhile to try and remove it to Federal Court? MR. BENSON: It depends on what grounds, you know, what sort of claims you may have against them. MR. GILLESPIE: Well, there is at least a Truth in Lending Act claim and other Federal claims like that. MR. BENSON: I understand, but you know, you really need a specialized attorney to evaluate that to see whether or not, you know, the grounds are really there to prevail on one of those cases -Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. GILLESPIE: Uh-huh. MR. BENSON: -- in Federal Court. MR. GILLESPIE: I can tell you that there is going to be no attorney that is going to advise me on this case, unless I plop down $20,000 cash or make some giant retainer. They're just not interested at all. So, you know, it's a reverse mortgage, most of them don't even know what that is. Some of them are set up to defend regular more, you know, a traditional mortgage. MR. BENSON: Right. Yeah. And reverse mortgages sometimes can have very -- a lot of complexities to them, and a lot of irregularities to them, too, as you're probably finding out. So I still feel you should talk to that family attorney and see if he can recommend some other attorney to at least -MR. GILLESPIE: I have already done that. MR. BENSON: Oh, you have already done that. MR. GILLESPIE: You know, I have contacted now I would say at least six attorneys since I was served. None of them are interested. And it just becomes very discouraging. And it's almost better just to try and answer yourself, because you expend Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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a tremendous amount of energy contacting people. And they get mad at you and they don't want to talk to you and so forth. I just don't need the negativity. MR. BENSON: Well, the answer is, yes, you can file an answer, but if there is grounds for a Motion to Dismiss, if there is no standing, then you can file a Motion to Dismiss first. MR. GILLESPIE: Uh-huh. MR. BENSON: Let the Judge rule on that. If the Judge says, no, and she's not going to dismiss the case, then you file the answer. MR. GILLESPIE: Uh-huh. MR. BENSON: So your best bet would be to file a Motion to Dismiss. MR. GILLESPIE: Yeah, because I don't know that this company has standing to sue. MR. BENSON: They have to prove that they own, you know, that they own the rights to this mortgage. MR. GILLESPIE: Uh-huh. All right. MR. BENSON: The reverse mortgage. So, you know, and they haven't provided you attached to the complaint with a lot of the documents so you can do the Motion to Dismiss. And then, you know, the Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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Judge may want to schedule it for a hearing or make the decision right on the bench, but whatever the decision the Judge makes, then you just have to take it from there. If the Judge says, no, I'm not going to dismiss the case, then the Judge will give you 10, you know, probably, might give you 10 days to file your answer. MR. GILLESPIE: You know, they have an assignment of mortgage attached to the complaint. But when I first got that I asked them, I made a -I think it's called an RESPA request. Is that what it's called? I asked them if they were the owners of the mortgage and they didn't answer. MR. BENSON: Okay. Well, I think if they haven't done that, if they haven't shown you that in the complaint, then you could raise that as part of your Motion to Dismiss. MR. GILLESPIE: Uh-huh. MR. BENSON: So that would be my advice to you; do the Motion to Dismiss. You know, then you can find out what the Judge does at that point. Then if the Judge says the case will go on, then you file your answer. MR. GILLESPIE: See, if the Judge says the case goes on, 30 days would have passed and then I Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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can't remove it to Federal Court. You have to remove it 30 days after the complaint. MR. BENSON: Yeah, yeah. MR. GILLESPIE: So am I understanding that sequence? Or does the 30 days start after the Motion to Dismiss is denied? MR. BENSON: I don't know the answer to that question. That -- because I don't deal with transferring cases to Federal Court, so I don't have much experience with transferring cases to Federal Court. But the reason why you would want to transfer it to Federal Court is if you're saying now you have like a counterclaim -MR. GILLESPIE: Yes. MR. BENSON: -- you would want to file against them. MR. GILLESPIE: We have counterclaims, definitely have counterclaims. And the counterclaims, you know, would be against some of the defendants like HUD. So that would be I guess a cross-claim. MR. BENSON: Right, it would be a cross-claim as to one of the defendants. MR. GILLESPIE: Yeah, HUD. MR. BENSON: You would -- yeah, if you're Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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going to want to go that route, you would -- I would strongly advise you to consult with a private attorney. MR. GILLESPIE: Right. Well, I just got an e-mail from our family lawyer. I was supposed to meet him this afternoon but then when the Community Legal Services called I thought well, I better hold off. So he can see me Monday. MR. BENSON: Go and see him Monday. MR. GILLESPIE: Yeah. MR. BENSON: Go and see him Monday. Because I strongly advise you to do that. If you're talking you want to possibly to go over to Federal Court and that sophistication of litigation, yes, you definitely would need to talk to a private attorney. MR. GILLESPIE: But he doesn't, you know, really practice that kind of law. He just does trusts and, you know, Wills and that kind of thing. MR. BENSON: Right. But you can even ask him about the trust. But then he may have some other recommendations for you. MR. GILLESPIE: All right. MR. BENSON: Because if you're thinking -- if you're even thinking about going over to Federal Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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Court you're going to need a private attorney who deals with that. MR. GILLESPIE: Uh-huh. MR. BENSON: Okay? MR. GILLESPIE: All right. MR. BENSON: That would be my advice to you at this point. MR. GILLESPIE: All right. Is there a way I can call you if I have any followup questions? MR. BENSON: Yeah, you can call us back. It may not be me, it could be another attorney. But the number you would call is (888)379-4729. MR. GILLESPIE: (888) 379? MR. BENSON: Yes. MR. GILLESPIE: Two -MR. BENSON: 4729. MR. GILLESPIE: 4729? MR. BENSON: Yes. MR. GILLESPIE: All right. MR. BENSON: Extension 2438. MR. GILLESPIE: All right, sir. I appreciate your call. MR. BENSON: You're very welcome. MR. GILLESPIE: You know, this complaint starts out, this is an In Rem Action. I guess In Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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Rem, that is just a fancy word for not much. MR. BENSON: For land only. MR. GILLESPIE: Uh-huh. My answer that I was going to put for that is: Denied insofar as the civil coversheet form 1.997 attached to the complaint shows the type of case is commercial foreclosure. This is a residential foreclosure of the homestead of a disabled person, Gillespie, in a 55 plus senior citizen residential community. Otherwise, admitted. MR. BENSON: Okay, that is fine, you can put that, you know, to explain that situation about the civil coversheet, absolutely. MR. GILLESPIE: I guess the other thing I didn't know, since I'm being sued both as a cotrustee and as just a person, do I need to put two sets of answers? Because in the heading I put: Defendants Neil J. Gillespie and Neil J. Gillespie, cotrustee of the trust, blah, blah, blah, respond. MR. BENSON: Well, yeah, you have to do it -were you served separately? MR. GILLESPIE: Yes. MR. BENSON: Yes, you need to do separately then, yes. Because your role is different. Your role as a person is different as the role as a Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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trustee. MR. GILLESPIE: So I am just responding to the -- myself personally and myself as a trustee, I'm not responding for anyone else? MR. BENSON: No, you can't respond for anyone else. You can only respond for you as a trustee and you as a person. MR. GILLESPIE: And can I -- all right. So I guess I need to put the answers separately. MR. BENSON: Yes. Yeah, you have to do them on separate pieces of paper. MR. GILLESPIE: Or separate sections, yeah. MR. BENSON: Well, separate -- it needs to be separate documents completely. MR. GILLESPIE: Oh, really? MR. BENSON: Yeah, it's like if you were two different people. MR. GILLESPIE: Oh, I'm glad you mentioned that, because I was going to put them all in one. MR. BENSON: No, no. You're going to do it as if you were two separate people. MR. GILLESPIE: See, that's critical. Because that would have been a big mistake. MR. BENSON: But let me just advise you this. Really talk to that -- your family attorney, Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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because if he knows about trusts then, you know, he would be able to advise you in terms of what the trust should be doing. MR. GILLESPIE: All right. MR. BENSON: That's going to be crucial, too. So it all comes together, you know, because your case is very complex. You have your -- you're being sued as a person and being sued as a trustee. MR. GILLESPIE: Yes. MR. BENSON: So you really need talk to that attorney who deals with the trust. MR. GILLESPIE: All right. MR. BENSON: Find out what the trust needs to do, because what you may need to do and what the trust needs to do may be two different things. MR. GILLESPIE: Well, I'm really glad you called and pointed that out to me because that was -- that would have got me messed up. MR. BENSON: Yeah. The trust and you are different, unless your attorney tells you otherwise, but really to me it looks like the trust is different from you and you-all may have different interests. MR. GILLESPIE: Uh-huh. All right. Well, I'm glad I have a callback number if I have any Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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questions. MR. BENSON: All right. MR. GILLESPIE: Let me just look over my notes again real quick. MR. BENSON: Okay. MR. GILLESPIE: Yeah. I mean, this is a little bit outside of the actual response, but I heard there's something called Cash for Keys, where they pay you to leave instead of litigating. MR. BENSON: Yes. MR. GILLESPIE: Is that still around? MR. BENSON: Yeah, that's still around. You need to talk to the bank and see if they're willing to entertain that. MR. GILLESPIE: I just sent the attorney today a request under TLA for -- for -- yeah, under the Truth and Lending Act, upon written request the obligor, the servicer shall provide the obligor to the best knowledge of the servicer with the name, address and telephone number of the owner of the obligation, or the master servicer of the obligation. So I made that request today. MR. BENSON: Okay. That's good. MR. GILLESPIE: Because I don't think Reverse Mortgage Solutions actually owns the obligation. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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And you know -MR. BENSON: Okay. MR. GILLESPIE: The complaint to HUD was 27 pages, thereabouts, and a couple hundred pages of exhibits. So it's quite complex. MR. BENSON: Okay. MR. GILLESPIE: That counseling session they give you is worthless. And they gave us a lot of financial projections, which are wildly inaccurate. I mean, right now the home is supposed to be worth like 170,000. If that were the case we could pay it off and just, you know, sell it, pay on it off and put money in our pocket to go buy another place. MR. BENSON: Right. MR. GILLESPIE: But we're under water. So the difference between what they told us would happen in four years is like $70,000 short. And all that is part of the HUD program, the way HUD tells people that this is going to work out. You know, the bank that originally made the loan, they went broke. The reverse mortgage company that originally made the loan, they're getting a windfall. They get a 50 million-dollar windfall when they sold out to some other larger Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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company. So there's all these other fiduciary duty type requirements that -- you know, these things are so complex I don't know how they can expect anyone to understand them. And at the time my mother had Alzheimer's dementia. I mean, that's what she died from like a year or so later. And they didn't follow any of the protocol. Because we did the telephone, you know, screening or whatever you call it, the counseling session. MR. BENSON: Okay. MR. GILLESPIE: And my mother couldn't answer any of the questions, obviously, because she was in an advanced stage of dementia. And I looked through the HUD handbook. They're supposed to question the person to make sure that they're competent. They didn't do any of that. I mean, I found all this stuff out afterwards. MR. BENSON: Okay. MR. GILLESPIE: But I don't know if the loan could be challenged on a competency ground. I mean, the death certificate says she died of dementia. MR. BENSON: Yeah. Well, I think you need to see what the HUD, what the complaint, what the Consumer Financial comes up with. Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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MR. GILLESPIE: Because that counseling phone call, you know, that was recorded, too. I have a copy of it. I sent that to them. MR. BENSON: Okay. Well, I think you need to see what they come up with first. MR. GILLESPIE: Yeah, but they're not -- we don't know when they're going to answer. They're not going to have any answer, you know, by next Friday. MR. BENSON: Friday, yeah. MR. GILLESPIE: And they said they couldn't even talk to me about it. But they said I could make a Freedom of Information Act request, which I did yesterday. But that's still going to take time. MR. BENSON: Yeah, it's still going to take time, because I think what, what -- well, let me put it this way, it may not -- you may not have the information for Friday for your answer, but if there is a separate claim separate to the foreclosure matter you may have a claim separate from the foreclosure. MR. GILLESPIE: I'm sorry, I might have a claim that what? I didn't hear that word. MR. BENSON: Your claim may be separate from Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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the foreclosure. MR. GILLESPIE: Right. Like a counterclaim. MR. BENSON: Maybe a counterclaim or even just a separate claim altogether, not even related to the foreclosure. MR. GILLESPIE: Because in a counterclaim don't they want extra fees for that? MR. BENSON: Counterclaims are very tricky. Counterclaims you can ask for, you know, damages in a counterclaim, but if you lose in a counterclaim you're going to have to pay the bank's attorney. MR. GILLESPIE: I see. MR. BENSON: Counterclaims are very, very tricky. MR. GILLESPIE: But I mean, in a counterclaim I think there's a filing fee, is what I'm asking. MR. BENSON: Yes, yes, there is a fee for filing. MR. GILLESPIE: It's like $350 or something. MR. BENSON: Yes. I don't know the exact amount, but there is a filing fee. MR. GILLESPIE: Uh-huh. See I really have no money. I'm sitting here with $20 to get to the end of next week. So, all right. MR. BENSON: All right. I wish you all the Michael J. Borseth Court Reporter/Legal Transcription (813) 598-2703
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best. You can call us back if you have other questions. MR. GILLESPIE: Thank you, sir. MR. BENSON: All right. You have a good day. MR. GILLESPIE: All right. Bye. (Whereupon, the above conversation concluded.)
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 STATE OF FLORIDA
C-E-R-T-I-F-I-C-A-T-E
COUNTY OF HILLSBOROUGH
I, Michael J. Borseth, Court Reporter for the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, in and for Hillsborough County, DO HEREBY CERTIFY, that I was authorized to and did transcribe a tape/CD recording of the proceedings and evidence in the above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute an accurate transcription of the tape recording of said proceedings and evidence, to the best of my ability. IN WITNESS WHEREOF, I have hereunto set my hand in the City of Tampa, County of Hillsborough, State of Florida, this 26 August 2013. MICHAEL J. BORSETH, Court Reporter
___________________________________

Florida Bar UPL Case No. 20133090 (5) Appendix UPL-B

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RESPONSE OF NEIL J. GILLESPIE TO THE FLORIDA BAR UNLICENSED PRACTICE OF LAW INVESTIGATION NO.

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