civil appeal statement, 11cirr33-1b appendix-record

7/28/2019 Civil Appeal Statement, 11CirR33-1b Appendix-Record

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File Stamp

Rev. 2/11 UNITEDSTATES COURT OF APPEALSFOR THE ELEVENTHCIRCUIT

CIVIL APPEAL STATEMENT

13-11585-bPlease TYPE. Attach additional pages ifnecessary. 11th Circuit Docket Number:

Caption:

REVERSE MORTGAGE SOLUTIONS, INC.,

v.

District and Division: Middle District, Florida, Ocala DivisionName of Judge: Hon. Wm. Terrell HodgesNature of Suit: remove HECM reverse mort forclosueDate Complaint Filed: removed Feb-04-2013District Court Docket Number: 5.13-cv-58-0c-WTH-PRL

NEIL J. GILLESPIE AS CO-TRUSTEES, ET AL.Date Notice of Appeal Filed: April-10-2013

DCross Appeal DClass ActionHas this matter previously been before this court?

UNITED STATES OF AMERICA, ON BEHALF DYes ii iNo

OF THE SECRETARY OF HOUSING ANDIf Yes, provide

URBAN DEVELOPMENT (a) Caption:(b) Citation:(c) Docket Number:

Attorney Name Mailing Address

For Appellant: PRO SE - NON-LAWYER 8092 SW 115th LoopD Plaintiff Neil J. Gillespie, See Ocala, Florida 34481ii i Defendant The Florida Bar, UnlicensedD Other (Specify) Practice of Law Investigation

of Neil J. Gillespie, Case No.20133090(5), May 14,2013.

For Appellee: Curtis Wilson 225 E Robinson St., Suite 660ii i Plaintiff Danielle N. Parsons Orlando, FL 32801D Defendant McCalla Raymer, LLCD Other (Specify)

Please CIRCLE/CHECK/COMPLETEthe items below and on page 2 that apply.

D

D

Jurisdiction Nature of Judgment Type of Order Relief

Telephone, Fax, and Email

[email protected]: 352-854-7807

[email protected]@mccallaraymer.comPhone: 407-674-1850

Diversity

US Plaintiff

iii Federal Question

ii i US Defendant

ii i Final Judgment,28 USC 1291

D Interlocutory Order,28 USC 1292(a)(l)

o Final Agency Action (Review)

o Interlocutory Order Certified,28 USC 1292(b)

o Interlocutory Order,Qualified Immuni ty

o 54(b)

ii i Dismissal/Jurisdiction

D Default Judgment

D Summary Judgment

D Injunction

D Judgment/Bench Trial

D Judgment/Jury Verdict

D Judgment/Directed Verdict/NOV

ii iOther Remand to state court

Amount Sought by Plaintiff:$ HECM foreclosure

Amount Sought by Defendant:$ Void HECM mortgage

Awarded:$ - - - - - - - -to - -Injunctions:D TROD Preliminaryo Permanent

D Grantedo Denied


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Page 2 11th Circuit Docket Number: 13-11585-b

Based on your present knowledge:

(1) Does this appeal involve a question of First Impression? I!IYes 0 NoWhat is the issue you claim is one of First Impression? Age 57 HECM co-trustee surviving borrower; void HECM

(2) Will the determination of this appeal turn on the interpretation or application of a particular case or statute? I!IYes 0 No

If Yes, provide(a) Case Name/Statute Robert Bennett, et aI., v. Secretary/HUD, 12 U.S.C. 1715z20, et seq.(b) Citation Bennett v. Donovan, 11-5288,2013 WL 45879 (D.C. Cir. Jan. 4,2013)(c) Docket Number if unreported No. 11-5288, U.S. Court of Appeals, District of ColurTlbia

(3) Is there any case now pending or about to be brought before this court or any other court or administrative agency that(a) Arises from substantially the same case or controversy as this appeal? 0 Yes 0 No(b) Involves an issue that is substantially the same, similar, or related to an issue in this appeal? 0 Yes 0 No

If Yes, provideunknown(a) Case Name

(b) Citation unknown(c) Docket Numbe r if unreported unknown(d) Court or Agency unknown

(4) Will this appeal involve a confli ct of law(a) Within the Eleventh Circuit? 0 Yes 0 No(b) Among circuits? I!IYes 0 No

If Yes, explain briefly:

U.S. Court of Appeals, DC Circuit, held the U.S., Secretary of Housing and Urban Development, "HUDitself has the capability to provide complete relief to the lenders and mortgagors alike, which eliminatesthe uncertainty of third-party action that would otherwise block standing...HUD could accept assignmentof the mortgage, payoff the balance of the loans to the lenders, and then decline to foreclose."

(5) Issues proposed to be raised on appeal, including jurisdictional challenges:

Matter of Doar (Brunson) 2009 NY Slip Op 29549 [28 Misc 3d 759] December 18, 2009 Thomas, J.Supreme Court. Appellate Division continued to require that a mortgagee have knowledge of the

mortgagor's incapacity before the contract which is otherwise voidable could be voided. In order to voida contract which is voidable because of incapacity, the mortgagor must establish that the mortgagee hadknowledge of the "incapacity and were . . . not bona fide mortgagees for value." (See Weisberg vDeMeo, 254 AD2d 351, 351 [1998].)

Failure to allege facts sufficient to establish subject matt er jurisdiction in a notice of removal is a defectin the removal procedure, district court cannot sua sponte remand a case to state court. CorporateMgmt. Advisors, Inc. v. Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009). See attachedpage for additional issues on appeal.

I CERTIFYTHAT I SERVED THIS CIVILAPPEALSTATEMENT ONTHE CLERK OF THE u.S. COURT OF APPEALS FOR THE ELEVENTHCIRCUITAND

SERVED A COPY ON EACH PARTY OR THEIR COUNSEL OF RECORD,THIS

Neil J. Gillespie, PRO SE - NON-LAWYERNAME OF COUNSEL (Print)

2013-=s...;;.,t_ _

Please ATTACHportion of district court, ta x court, or agency record described in 11th Cir. R. 33-1(b): (a) judgment s and orders appealedf rom or sought to be reviewed; (b) anysupporting opinion,findings of fact, and conclusions of law filed by the court or the agency, board,commission, or officer; (c) anyreport and recommendation adopted by an order; (d)findi ngs and conclusions of an administrative law judgewhen appealing a court or der reviewing an agency determination; (e) any agency docket sheet or record index.


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Civil Appeal Statement - additional pagesEleventh Circuit Docket Number: 13-11585-B

Appeal Number 13-11585-BReverse Mortgage Solutions, Inc. v. Neil J. Gillespie, et al.District Court Docket No: 5:13-cv-00058-oc-WTH-PRL

This appeal considers whether the federal court has jurisdiction on a disputed foreclosure of aHome Equity Conversion Mortgage, called a HECM reverse mortgage, which dispute turns onthe interpretation of the federal HECM statute 12 U.S.C. 1715z20, federal HECM reg. 24C.F.R. Part 206, and Bennett v. Donovan, 11-5288, 2013 WL 45879 (D.C. Cir. Jan. 4, 2013).

I am a surviving HECM borrower, and homeowner, facing foreclosure and loss of my home.

A HECM does not require the homeowner to make mortgage payments like a conventionalmortgage. Instead, a HECM does not become due and payable until the last surviving borrower dies or no longer lives in the home. Here, the Plaintiff contends the death of my mother is theevent triggering foreclosure. But I am one of two surviving borrowers, and the only surviving

borrower living in the home in substantial compliance with the HECM note.

Bennett provided protections for surviving spouses of reverse mortgage borrowers who faceforeclosure after the death of their spouses. Bennett found younger spouses are often given bad advice to remove their name from ownership of the house so that the older spouse can obtain areverse mortgage on more favorable terms. Bennett 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...HUD could accept assignment of themortgage, pay off the balance of the loans to the lenders, and then decline to foreclose." A reporton Bennett by the National Consumer Law Center is attached for a more detailed explanation.

Unfortunately borrower Penelope Gillespie, my mother, lacked capacity to enter a contract and died of Alzheimers dementia. The loan originator knew my mother lacked capacity to enter acontract. A recording and transcript of the HECM telephone counseling session showed

borrower Penelope Gillespie lacked capacity to enter a contract. Still, lender and affiliated parties made the HECM anyway, adding me and my brother to the quit claim deed with mymother. All three of us became HECM borrowers as co-trustees of a family trust.

In Santos, the Court rejected a definition of borrower to include only natural persons acting intheir individual capacities. Isabel Santos, individually and as trustee and beneficiary of theYolanda Maria Santos Trust, et al. v. Reverse Mortgage Solutions, et al, No. 12-3296-SC, U.SDistrict Court, Northern District of California

There is a lot more wrong with this HECM, which was a compete disaster, as shown in mycomplaint to HUD, who in turn sent part of the complaint the Consumer Financial ProtectionBureau. Bank of America, which somehow bought the loan before the June 5, 2008 closing,claimed it could not discuss the loan with me during the CFPB investigation due to privacy.Thereupon the CFPB closed the complaint unresolved.

Bank of Americas servicer, the Plaintiff, Reverse Mortgage Solutions, Inc., filed January 9,2013 in Florida state court an in rem action to foreclosure HECM. I filed a motion to dismiss in


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state court February 4, 2013, and immediately removed to the district court under 28 U.S.C. 1441(a), 28 U.S.C. 1331, 5 U.S.C. 702, the Admin. Procedures Act and Bennett v. Donovan.

But ultimately I believe Ms. Gillespies incapacity voids the contract, according to a holding inthe Matter of Doar (Brunson) 2009 NY Slip Op 29549 [28 Misc 3d 759] December 18, 2009,Thomas, J. Supreme Court. I found this case recently, where the Appellate Division continued torequire that a mortgagee have knowledge of the mortgagor's incapacity before the contract whichis otherwise voidable could be voided. In order to void a contract which is voidable because of incapacity, the mortgagor must establish that the mortgagee had knowledge of the "incapacityand were . . . not bona fide mortgagees for value." (See Weisberg v DeMeo, 254 AD2d 351, 351[1998].) A story reporting on the case Matter of Doar by Reverse Mortgage Daily is attached.

The district court remanded the case back to state court sua sponte for lack of subject matter jurisdiction, after the court denied my objections to the magistrate judges report and recommendation pursuant to 28 U.S.C. 1915(e)(2) that recommended the motion to proceed in

forma pauperis be denied, and this case be remanded to state court for lack of subject matter jurisdiction. The district court denied me leave to amend the notice of removal. Troville v. Venz,303 F.3d 1256, 1260, n. 5 (11th Circ. 2002), allows amended pro se pleading IFP.

Notably the Plaintiff did not move to remand. The district court did not permit the Plaintiff torespond to my objections to the report and recommendation. Failure to allege facts sufficient toestablish subject matter jurisdiction in a notice of removal is a defect in the removal procedure,district court cannot sua sponte remand a case to state court. Corporate Mgmt. Advisors, Inc. v.Artjen Complexus, Inc., 561 F.3d 1294, 1296 (11th Cir. 2009). A writ of mandamus is the proper means by which a party may challenge a remand order. Thermtron Products, Inc. v.Hermansdorfer, 423 U.S. 336, 352-53, 96 S.Ct. 584, 593-94, 46 L.Ed.2d 542 (1976).

McCalla Raymer, LLC represents the Plaintiff. There was significant attorney misconduct, see:

Rule 11 sanction motion against Ms. Parsons, McCalla Raymer LLC. (Doc. 15)Rule 55 motion for default judgment by Defendant Gillespie. (Doc. 16)Rule 72/Rule 60(b)(3) Verified Objection to Magistrate Order by Gillespie. (Doc. 17)

U.S. Rep. Elijah E. Cummings wrote February 25, 2011 to Inspector General Linick of FederalHousing Finance Agency (FHFA) asking that he initiate an investigation into widespread allegations of abuse by private attorneys and law firms hired to process foreclosures as part of the "Retained Attorney Network" established by Fannie Mae. Rep. Cummings complained about McCalla Raymer, LLC by name. (the letter of Rep. Cummings is attached).

U.S. Judge Wm. Terrell Hodges, the district court trial judge, failed to recuse under 28 U.S.C. 455(b)(4), for a financial interest of the Judge in Bank of America, the real party Plaintiff.

Judge Hodges later ruled upon, and denied, his own disqualification on my affidavit made under 28 U.S.C. 144, bias or prejudice of judge, which accompanied my Rule 59(e) motion to alter or amend the judgment. Judge Hodges denied the Rule 59(e) motion too.

The Florida Bar notified me May 14, 2013 of the Unlicensed Practice of Law Investigation of Neil J. Gillespie, Case No. 20133090(5), for representing my interests pro se in this foreclosure.


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[W]e admit to being somewhat puzzled as to how HUD can justify a regulationthat seems contrary to the governing statute. HUD explains that it is speciallyconcerned about the scenario in which a homeowner, after taking out a reversemortgage, marries a spouse particularly a young spouse and therebysignificantly increases a lenders risk. It would seem, however, that HUD could legitimately deal with that problem by issuing a regulation defining a spouse asonly a spouse in existence at the time of the mortgage. [10]

If the district court on remand finds for plaintiffs on the merits, HUD need not follow the steps to redress laid out by the Court i.e., assignment and payment of the mortgages and may find another path to redressing plaintiffs

injury. However, the Court noted, if plaintiffs prevail on the merits but are dissatisfied with HUDs remedy, theywould always have the opt ion to seek review on the ground that HUDs actions were arbitrary, capricious, anabuse of discretion, or otherwise not in accordance with law. [11] What Now?

Plaintiffs currently await the next steps in this litigation. HUD may choose to request a rehearing or appeal theruling. Barring that, the case will be remanded to the district court, where plaintiffs are likely to prevail on themerits, given the expressed views of the D.C. Circuit. In the meantime, the D.C. Circuit opinion provides keysupport to advocates defending surviving HECM spouses from foreclosure. Even prior to the issuance of thedecision, a California widower survived summary judgment on a claim for reformation of the HECM contract

based, in part, on his assertion that the federal statutory protection of homeowners from displacement should protect him from foreclosure. [12] The Bennett courts support for this reading, and the fact that ultimate success by plaintiffs would result in protection from foreclosure, should strengthen the hand of surviving spouses makingsuch claims.

Copyright 2013 National Consumer Law Center, Inc.

[1] 2013 WL 45879 (DC Cir. Jan. 4, 2013).[2] 12 U.S.C. 1715z-20(j)[3] 24 C.F.R. 206.33[4] 12 U.S.C. 1715z-20(j)[5] 5 U.S.C. 706(2)(A).[6] Plaintiffs Complaint also asserted that HUDs issuance of Mortgagee Letter 2008-38 (requiring the first t imethat surviving spouses and heirs repay the full HECM balance if they want to keep the home, while allowing a saleof the property to anyone else for 95% of its current appraised value) violated the APA. Shortly after theComplaint was filed, HUD revoked ML 2008-38 by issuing ML 2011-16.[7] Bennett v. Donovan, 2013 WL 45879 (DC Cir. Jan. 4, 2013).[8] Id. See also Lujan v. Defenders of Wildlif e , 504 U.S. at 561, holding that a plaintiffs claims are redressable if it is likely as opposed to merely speculative that the relief granted by the court will redress the injury.[9] Bennett v. Donovan, 2013 WL 45879 (DC Cir. Jan. 4, 2013).[10] Id.[11] Id.[12] Kerrigan v. Bank of America, 2011 WL 3565121 (C.D. Cal. Aug. 12, 2011) (denying bank summary

judgment on claim for reformation of contract).

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- Reverse Mortgage Daily - http://reversemortgagedaily.com -

Judge Voids Reverse Mortgage, Says Counseling Fails to ProveCompetencyPosted By Reva On January 14, 2010 @ 9:50 am In Counseling,Legislation,News,Reverse Mortgage | 105Comments

In a ruling last month, Charles J. Thomas, a New York Supreme Court Judge voided a reversemortgage and its subsequent refinancing on the grounds that the borrowers mental il lness made herunable to understand the reverse mortgage.

In the case, Matter of Doar, 31393/07 [1] , the borrower, Ms. Hermina Brunson, took out a reversemortgage with Financial Freedom on her home in Queens for $300,000 in December of 2001,refinancing for $375,000 in June of 2003.

However, at the time, Ms. Brunson was being treated for chronic paranoid schizophrenia. By the endof 2001, her psychiatrist testified that Ms. Brunson was hearing voices, believed her neighbor wastrying to take her home away from her, and claimed that she no longer had the deed to the home.

Despite the counseling session lasting 45 minutes over the phone, the judge wrote that it was notmeant to be perfunctory or a mere rubber stamp of the banking or mortgage industry. It wasintended to secure that the rights of elderly homeowners were protected. The mortgagee isentrusted with the responsibility of conducting an inquiry of the applicants understanding of themortgage agreement.

Judge Thomas continued, There is no evidence that Ms. Brunson understood the terms of themortgage or the Counseling Certificate that she signed on June 20, 2003. He faulted the counselorfor not unearthing the borrowers mental illness and her delusions regarding her home. Mostsignificantly for the industry, Judge Thomas ruled:

While the Certificate of Counseling is an indication that information was given to thehomeowners it is not dispositive of the issue of the mortgagors knowledge and understanding of the implications of a reverse mortgage or that the National Housing

Act has been satisfied. That determination rests ultimately with the court.

As a result, the responsibility is on the lender to prove that the borrower understood the reversemortgage, regardless of whether or not they received a counseling certificate.

The judge further faulted the counseling process, noting that there was no evidence as to thequalifications of the counselor, whether the counselor spoke to Ms. Brunson or only to her brother, if Ms. Bunsons questions were answered, and what information the counselor provided.

While recent counseling reforms such as the qualification of the counselor addresses some of theseissues, this is still a situation that could be repeated today.

In the ruling, Financial Freedom was ordered to void the mortgage, but the Guardian of the borroweris directed to reimburse Financial Freedom for monies paid out at the closing which includes taxes,water charges, and the New York City Department of Social Services liens. It is unclear whetherFinancial Freedom will appeal.

Matter of Doar, 31393/07 [1]

Write to Reva Minkoff [2]

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DARRn.L r: ISSA, CALIFORNIA ONE HUNDRED TWELFTH CONGRESS U.IJAH E CUMMINGS, MARYLANDCHAIHMAN RANKING MINORITY MEMBER

DAN BURTON, INDIANA EDOLPHUS TOWNS, NFW YORKJOHN L MICA, FLORIDA CAROLYN B. MALONEY, NEW YORK(!Congress of tbe Wntteb ~ t a t e sODD RUSSELL PLATTS, PFNNSYI VANI!\ H CANOR HOLMES NORTON,M ICHACL R TURNER, OHIO DISTRICT OF COLUMBIAPA TRICK McHENRY, NORTH CAFWLlNA DENNIS J KUCINICH, OHIOJIM JORDAN, OHIO JOHN F. TIERNEY, MASSACHUSETTSl,oltgr of l\rpregentatiuegJASON CHAFFETZ, UTAH WM LACY CLAY, MISSOURICONNIE MACK, FLORIDA STEPHEN F. LYNCH. MASSACHUSETTSTIM WALBERG, MICHIGAN COMMITIEE ON OVERSIGHT AND GOVERNMENT REFORM JIM COOPER. ll:NNESSEEJAMES LANKFORD, OKLAHOMA GERALD E. CONNOLLY, VIRGINIAJUSTIN AMASH, MICHIGAN MIKE QUIGLEY, ILLINOISAN N MARIE BUERKLE, NEW YORK 2157 RAYBURN HOUSE OFFICE BUILDING DANNY K. DAVIS, ILLINOISPAUL A GOSAR, D D.S., ARIZONA BRUCE L. BRALEY, IOWARAUL R. LABFlADOR. IDAHO P E H R WELCH, VERMONTWASHINGTON, DC 20515-6143PATRICK MEEHAN, PENNSYl VANIA JOHN A. YARMUTH, KENTUCKYsc:on Drs,JARLAIS, M .D , fFNNESSH CHRISTOPHER S. MURPHY, CONNECTICUTM i \ " . ' H I ~

(; 'O?):'2b ' ,0 /4,fOE WALSH, ILLINOIS JACKIE SPEIEH, CALIFORNIAf ,\( 'dMII I l,'O?) ??'i 397.1TRFY GOWDY, SOUTH CAROliNA

M I N ' )HI; ( 1?02, . ! ; ' ~ , ' ) o ~ ) 1DENNIS A. ROSS, FLORIDAFRANK C. GUINTA, NEW HAMPSHIHEBLAKE FI\RFNTHOI 0, TEXASMIKE KELLY, PENNSYLVANIA

LAwnENCl J UHADYSTAFF DIRf:.CTOH February 25,2011

The I-Ionorable Steve A. LinickInspector GeneralFederal Housing Finance Agency1625 Eye Street, NWWashington, DC 20006

Dear Mr. Inspector General:

I am writing to request that you initiate an investigation into widespread allegations ofabuse by private attorneys and law tirins hired to process foreclosllres as part of the "RetainedAttorney Network" established by Fannie Mae. I also request that you examine allegations ofabusive behavior on the part of default managenlent firms engaged by both mortgage servicersmanaging Fannie Mae-backed loans and attorneys and firms that are part of the RetainedAttorney Network. Finally, I request that you examine efforts by Fannie Mae and the FederalI-Iousing Finance Agency (FHF'A) to investigate these allegations and implement correctiveaction.

Allegations of Abuse in th e Retained Attorney Network

In August 2008, Fannie Mae created "a new nlandatory network of retained attorneys tohandle all foreclosure and bankruptcy matters" relating to Fannie Mae mortgage loans, whetherheld in portfolio or mortgage-backed securities. Fannie Mae required that only these retainedattorneys represent Fannie Mae 1110rtgage servicers, and it established the maximum allowablereinlbursable fees for foreclosure-related work. I In December 2010, Fannie Mae Executive VicePresident Terence Edwards announced that the Retained Attorney Network would be expandedfrom 31 to 50 states. 2

I Fannie Mae, Netv Foreclosure an d BankruptL)l Attorney Netvvork an d Attorney's Fees

an d ('osts (Announcement 08-19) (Aug. 6, 2008) (online at https://www.efanniemae.com/st/guides/ssg/annltrs/pdf/2008/0819.pdt) (requiring also that '''requests for approval of excessfees by Fannie Mae must be submitted via email''!).

2 Testilnony of l'erence Edwards, Executive Vice President, Credit PortfolioManagelnent, Fannie Mae, before the u.S. Senate Committee on Banking, Housing and UrbanAffairs (Dec. 1,2010) (online at www.fannielnae.coln/medialpdf/Edwards_SenateBankingComnlittee_12-1-10.pdt).


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'The Honorable Steve A. LinickPage 2

Recent reports indicate that nlany of the private attorneys, law firms, and other entitiesparticipating in the Retained Attorney Network have been accused of practices that are fraughtwith flaws, errors, conflicts of interest, and fraud, and these allegations have prompted numerousstate and federal investigations.

For example, on August 10, 20 la , the Florida State Attorney General announced aninvestigation into unfair and deceptive practices by the Law Offices of David J. Stern, P.A., thel.Jaw Offices of Marshall C. Watson, P.A., and Shapiro & Fishnlan, L.L.P. The allegationsagainst the tirlns include creating and filing with Florida courts improper documentation to speedforeclosures and establishing affiliated companies outside the United States to prepare falsedocuments. 3 In announcing this investigation, the Attorney General stated:

On nunlerous occasions, allegedly fabricated documents have been presented tothe courts in foreclosure actions to obtain final judglnents against homeowners.Thousands of final judglnents of foreclosure against Florida homeowners mayhave been the result of allegedly inlproper actions of the law firlns under 4InvestIgatIon.Fornler enlployees of the Stern law firn1 also reportedly alleged that the firm engaged in

"robo-signing," a practice in which employees signed hundreds of foreclosure affidavits eachday, falsely swearing to have personal knowledge of the underlying documents. One employeetestified that the firln' s chief operating officer "signed as Inany as 1,000 foreclosure affidavits aday without reading a single word."s The elnployees also reported that the firln backdated andaltered documents, and that it took steps to cover its 111isconduct by changing the dates onhundreds of docUlnents. 6

Last November, Fannie Mae issued a public notice stating that it had "terminated its

relationship with the Law Offices of David J. Stern" and inforlning servicers that they "may notrefer any future Fannie Mae nlatters to the Stern finn.,,7

S e p a r a t e l y ~ the U.S. Trustee Progranl (UST'P) of the Department of Justice isinvestigating another firnl in the J{etained Attorney Network, the firln of Steven J. Baum, P.C. ofA111herst, Ne\v York, for tiling foreclosure dOClunents that appear to be false or m i s l e a d i n g ~

3 Attorney General of Florida, Press Release: Floril1a Lalv Firms Subpoenaed OverF'oreclosure / ~ i l i n g [Jractices (Aug. 10, 2010) (online at \vww.nlytloridalegal.com/newsrel.nsfinewsreleases/2BAC 1AF2A61 BBA398525777B0051 BB30).

4 / e .

5 1'he l?ise anel J?all qf'o J ~ ' o r e c l ( ) s u r e K i n ( ~ , Associated Press (Feb. 6, 2011).

6 Questions Risin


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~ r h e J-Ionorable Steve A. LinickPage 3

attel1lpting to foreclose on borrowers after rejecting their attelnpts to 111ake on-tinle p a y m e n t s ~ and failing to prove ownership of mortgages as it seized homes. The firm has also been accusedof illegally charging for foreclosure-settlement conferences, overcharging on foreclosure fees,and racketeering. 8

Another firnl in the Retained Attorney Network, McCalla Raymer, L.L.C., is a defendantin a federal lawsuit in which the plaintit1s allege that it engaged in fraud, racketeering, and themanufacture of fraudulent foreclosure documents. Reportedly, this firnl established operationsin Florida under the nalne Stone, McGehee & Silver and hired ten forlner Stern law firmelnployees. 9 Th e firm Stone, McGehee and Silver, LLC, dba McCalla Raymer currently appearsas a "Designated Counsel/Trustee" in Florida for Freddie Mac. ID

Lender Processing Services, Inc. (LPS), a $2.8 billion company headquartered inJacksonville, Florida-and the largest provider of default loan services in the nat ion- is alsounder investigation by the Florida Attorney General for producing apparently forged orfabricated dOCUl1lents in foreclosure actions. 11 LPS is also a defendant in a federal suit allegingan illegal fee-sharing schelne. Filed in federal bankruptcy court in Mississippi, the suit allegesthat LPS and another company, Pronlmis Solutions I-Iolding COlnpany, illegally requiredattorneys in their networks to turn over a portion of their fees for foreclosure services, an d thatanother large la w firnl, Johnson & Freedman, I-J.L.C., joined in this schenle. The Chapter 13'rrustee [or the Northern District of Mississippi, a unit of the DepartInent of Justice, has joined asa plaintiff. 12

A special investigation by Reulers last Decelnber reported that LPS an d its affiliatedcOlllpanies also al legedly deployed low-skilled, non-lawyers to prepare foreclosure documents,created invalid Inortgage assignl1lents to facilitate foreclosures, and rewarded attorneys for speedrather than accuracy in filing court pleadings. Reuters reported:

8 See Federal Honle [.Joan Mortgage Corp. v. Raia, SP 002253/10, District Court ofNassau County, New York (Henlpstead); Campbell v. Baunl, 10-cv-3800, U.S. District Court,Eastern District of New York ( B r o o k l y n ) ~ Menashe v. Steven J. Baum P.C., 10-cv-5155, U.S.District Court, Eastern District ofNe\v York (Central Islip); and Saum v. Lask, 2010- 012048,New York Suprenle Court, f ~ r i e County (Buffalo).

9 Novice J:;7orida Lcnv)Jers D r a ~ v l.)llSIJicion in Foreclosure A1ess, Palm Beach Post (Jan.13, 2011 ) (online at www.palnlbeachpost.com/nl0ney/real-estate/novice-florida-lawyers-drawsuspicion-in-foreclosure-nless-1146402.htnl1).

10 Freddie Mac, (]uicle Exhibit 79: Designate(/ ("olinselIT'rustee (Florida) (revised 2/8/11)(online at wvvw. freddienlac.coln/service/nlsp/exh 79_ n.html).

II ()ftice of the Attorney General of l o r i d a ~ Case Nunlber L10-3-1 094 (online athttp://nlyfloridalegal.conl/_85256309005085AB. nsf/0/98099 A 9003203 OBE85257713 00426A68?C)pen&I-lighlight==0,lps).

12 'Thorne v. Pronlnlis Solutions I-Iolding Corp. et aI., Second Amended Class ActionCOlnplaint, 10-01172 (BR N . D . M . S . ~ Oct. 10,2010).


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l"'he I-Ionorable Steve A. LinickPage 4

The law firiTIS are on a stopwatch. [An LPS spokesman] COnfirlTIed that the LPS DesktopsystelTI automatically tinles how long each firm takes to complete a task. It assigns firnlsthat turn out work the fastest a "green" rating; slower ones "yellow" and "red" for those

that take the longest. Court records show that green ratings go to firiTIS that jump onoffered assignlnents from their LPS computer screens and almost instantly turn out readyto-file court pleadings, often using teanlS of low-skilled clerical workers with littleoversight fro111 the lawyers. 13

Although Fannie Mae terll1inated its relationship with the Stern law firm last November,it does not appear to have terminated its relationships with any of the other firms describedabove.

14

I ~ e q u e s t fo r Investigation

T'hese are serious allegations that nlay have affected thousands of homeowners. For thesereasons, I request that your office initiate a cOlnprehensive investigation into allegations of abuseby attorneys and law firms participating in the Retained Attorney Network, as well as servicersand default loan service providers alleged to have participated in these abuses.

I t is Illy understanding that the ll1ission of your of lice is to "promote the economy,etliciency, and effectiveness of the FHFA's progranls; to assist FHFA in the perforn1ance of its111ission; to prevent and detect fraud, waste, and abuse in FHF A' s p r o g r a l n s ~ and to seeksanctions and prosecutions against those who are responsible for such fraud, waste, and abuse.,,15In 2008, FHFA replaced the Office of Federal Housing Enterprise Oversight and became theregulator and conservator for Fannie Mae. As such, the agency's duties include overseeing the"prudential operations" of Fannie Mae and its contractors and ensuring that their activities and

operations "are consistent with the public i l l t e r e s t . ~ , 1 6

With this background, I request that you address the following issues with respect toattorneys and law firnls participating in the Retained Attorney Network program and withrespect to other entities engaged by both mortgage servicers Inanaging Fannie Mae-backed loansand attorneys and finns that are part of the Retained Attorney Network:

1. '"1"'0what extent have hon1eo\vners lost their hon1es to inlproper, illegal, or otherwiseinvalid foreclosures as a result of the types of abuses described above?

13 Jd.

14 Fannie Mae, I?etainecl /ll1orney List (effective February 10,2011) (online athttps: IIw\vw. efan nienlae.colnlsf/techno logy I servinvreportlanln/pd fl retainedattorneylist.pdf).

15 Website of the Federal I-lousing Finance Adn1inistration Office of Inspector General(accessed on Feb. 3,2011) (online at Www.fllfaoig.gov/).

16 Section 1313(a)( 1 ( A ) - ( B ) ~ I-Iousing and Economic Recovery Act of 2008 (P.L. 110289).


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'rhe I-Ionorable Steve A. LinickPage 5

2. To what extent have homeowners been charged inlproper, illegal, or otherwise invalidfees during the foreclosure process?

3. 1"0 what extent are attorneys, law iirlTIS, and other entities engaged in fee-splitting,kickbacks, or other silnilar schenles?

4. What is the total anlount in 'excess fees" that has been requested from Fannie Mae byattorneys and law firlns? Of this amount, how much has been reilnbursed, and how nluchhas been deterlnined to be inappropriate or unwarranted?

5. I-lave FJ-IFA or Fannie Mae conducted investigations into allegations of abuse byattorneys, law firlTIS, or other entities, and if so, \vhat are the results? Were theseallegations considered before the recent expansion of the Retained Attorney Network toall 50 states?

6. What specific inforlnation has been collected regarding allegations against the followingfirnls and their affiliates?

a. Law Offices of David J. Stern, P.A.b. l.law ()ftices of Marshall C. Watson, P.A.c. Shapiro & Fishn1an'l l.l.L.P.d. Steven J. Baunl, P.C.e. McCalla Raymer, L.L.C.f. Johnson & Freednlan, L.L.C.g. Prolnmis Solutions IIolding COlnpanyh. Lender Processing Services, Inc. and LPS Default Solutions, L.L.C.

7. t-Iave there been claims alleging that other attorneys or law firms participating in theRetained Attorney Network progranl or any default nlanagement firms Inanaging theforeclosure of Fannie Mae-backed loans have engaged in similar conduct that violates therights of borrowers or investors, federal or state foreclosure Initigation progralnguidelines, federal or state la\v, federal or state judicial requirements, state bar ethicsrequirelnents, or other regulations, rules, guidelines, or laws?

8. 'fo what extent have the alleged abuses described above underlnined loss and foreclosurenlitigation efforts and outcoll1es? What responsibilities do loan servicers have in1110nitoring and overseeing the activities of attorneys and other third party companies?What are the levels of cure rate and loss Initigation activities among retained attorneys?


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' rhe Honorable Steve A. LjnickPage 6

If you have any questions about this request, please have a member of your staff contactLucinda LJessley of the conlmittee staff at 202-225-4290.

'r'hank you for your consideration, and please feel free to contact me or my staff with any

questions.

Sincerely,

cc: The Honorable Darrell E. Issa, Chair nlan


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UNITED STATES COURT OF APPEALSFOR THE ELEVENTH CIRCUIT

REVERSE MORTGAGE SOLUTIONS,

INC., Plaintiff/Appellant,APPEAL NO.: 13-11585-B

v. District Court: 5:13-cv-58-Oc-WTH-PRL

NEIL J. GILLESPIE AS CO-TRUSTEES,ET AL.

Defendants/Appellees. _____________________________________/

Appendix of 11th Cir. R. 33-1(b) Portions of Record

CIVIL APPEAL STATEMENT

1. Order (11th Cir.) June 12, 2013, appeal dismissed, sua sponte, for lack of jurisdiction

2. District court record on CD-ROM, documents in PDF (Doc. 1 through Doc. 30); and copy

3. District court civil case docket no: 5:13-cv-00058-WTH-PRL

4. Order (Doc. 28), May 9, 2013, denied leave to proceed on appeal IFP

5. Order (Doc. 24), April 12, 2013, denied Rule 59(e) motion to alter or amend the

judgment (Doc. 21); and denied Affidavit of Neil J. Gillespie, 28 U.S.C. 144, bias or prejudice of judge (Doc. 22)

6. Judgment in a Civil Case (Doc. 20), March 11, 2013

7. Order Remanding Case (Doc. 19), March 7, 2013. Adopted in its entirety the Report and Recommendation (Doc. 10); denied Objections to Report and Recommendation (Doc. 18)

8. Order (Doc. 12), February 22, 2013(Magistrate Order extending Plaintiff time to respond to Motion to Dismiss)

9. Report and Recommendation (Doc. 10), February 13, 2013


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Case 5:13-cv-00058-WTH-PRL Document 30 Filed 06/12/13 Page 1 of 3 PageID 856

1


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2. District court record on CD-ROM, documents in PDF (Doc. 1 through Doc. 30); and copy.

2


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CLOSED

U.S. District CourtMiddle District of Florida (Ocala)

CIVIL DOCKET FOR CASE #: 5:13-cv-00058-WTH-PRL

Reverse Mortgage Solutions, Inc. v. Neil J. Gillespie asCo-Trustees et alAssigned to: Senior Judge Wm. Terrell HodgesReferred to: Magistrate Judge Philip R. LammensCase in other court: 11th Circuit, 13-11585-B

State Court - 1/9/13, 2013-115-CATCause: 05:0702 Administrative Procedure Act

Date Filed: 02/04/2013Date Terminated: 03/11/2013Jury Demand: None Nature of Suit: 290 Real Property: Other Jurisdiction: Federal Question

Plaintiff

Reverse Mortgage Solutions, Inc. represented by Danielle N. ParsonsMcCalla Raymer, LLCSuite 660225 E Robinson StOrlando, FL 32801954-319-7121Fax: 954-556-7061Email: [email protected]

LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.Defendant

Neil J. Gillespie as Co-Trusteesof the Gillespie Family Living Trust

Agreement Dated February 10, 1997

represented by Neil J. Gillespie as Co-Trustees8092 SW 115th LoopOcala, FL 34481352/854-7807PRO SE

Defendant

Mark Gillespie as Co-Trusteesof the Gillespie Family Living Trust


Defendant

Oak Run Homeowners Association, Inc.

Defendant

United States of Americaon behalf of the Secretary of Housing and Urban Development

ronic Case Filing | U.S. District Court - Middle District of Florida https://ecf.flmd.uscourts.gov/cgi-bin/DktRpt.pl?798989392314971-

6/17/2013 13


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Defendant

Elizabeth Bauerle

Defendant

Mark Gillespie represented by Tiffany CaparasKaufman, Englett & Lynd, PLLC111 N. Magnolia Avenue

Suite 1600Orlando, FL 32801 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Neil J. Gillespie represented by Neil J. Gillespie8092 SW 115th LoopOcala, FL 34481352/854-7807PRO SE

Defendant

Development & ConstructionCorporation of America

Defendant

Unknown Spouseof Elizabeth Bauerle

Defendant

Unknown Spouseof Mark Gillespie

represented by Tiffany Caparas(See above for address)

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Unknown Spouseof Neil J. Gillespie

Defendant

Unknown Settlors/Beneficiariesof the Gillespie Family Living Trust


Defendant

Unknown Trustees

Defendant

Settlers and Beneficiariesof Unknown Settlers/Beneficiaries of theGillespie Family Living Trust Agreement dated February 10, 1997


6/17/2013 1


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Defendant

Unknown Tenant in Possession 1

Defendant

Unknown Tenant in Possession 2

Date Filed # Docket Text

02/04/2013 1 NOTICE OF REMOVAL from 5th Judicial Circuit in and for Marion County, casenumber 2013-115-CAT filed in State Court on 1-9-13. filed by Neil J. Gillespie asCo-Trustees, Neil J. Gillespie. (Attachments: # 1 State Record)(LAB) Modified on2/6/2013 (Entered: 02/06/2013)

02/04/2013 2 COMPLAINT (verified) to foreclose home equity conversion mortgage against AllDefendants filed by Reverse Mortgage Solutions, Inc.(LAB) (originally filed in statecourt) Modified on 2/6/2013 (LAB) (Entered: 02/06/2013)

02/04/2013 3 MOTION to quash service of process filed by Mark Gillespie and Unknown Spouse(of Mark Gillespie). (LAB) Originally filed in state court) Modified on 2/6/2013 (LAB).(Entered: 02/06/2013)

02/04/2013 4 NOTICE of Filing Agreement with Plaintiff's Counsel to Extend Time to Respond tothis Lawsuit until 2/4/13 by Neil J. Gillespie and Neil J. Gillespie as Co-Trustees. (LAB)(originally filed in state court) Modified on 2/6/2013 (LMF). (Entered: 02/06/2013)

02/04/2013 5 MOTION to Dismiss complaint (verified) to foreclose home equity conversion mortgage by Neil J. Gillespie and Neil J. Gillespie as Co-Trustees. (Attachments: # 1 Exhibits1-19, # 2 Composite A, # 3 Composit B, # 4 Appendix 1-21, # 5 Appendix22-42)(LAB) (Originally filed in state court) Modified on 2/6/2013 (LMF). (Entered:02/06/2013)

02/05/2013 6 MOTION for leave to proceed in forma pauperis/affidavit of indigency by Neil J.Gillespie. (LAB) Motions referred to Magistrate Judge Philip R. Lammens. Modified on2/6/2013 (LMF). (Entered: 02/06/2013)

02/06/2013 7 MOTION for miscellaneous relief, specifically for Authorization to File Electronically by Neil J. Gillespie. (LAB) (Entered: 02/07/2013)

02/07/2013 8 SUPPLEMENT re 6 MOTION for leave to proceed in forma pauperis/affidavit of indigency by Neil J. Gillespie. (LAB) (Entered: 02/07/2013)

02/11/2013 9 NOTICE of filing titled "Notice of Homestead" by Neil J. Gillespie. (LAB) (Entered:

02/12/2013)02/13/2013 10 REPORT AND RECOMMENDATION re 6 Defendant Neil Gillespie's Motion for

Leave to Proceed In Forma Pauperis. Signed by Magistrate Judge Philip R. Lammenson 2/13/2013. (JLS) (Entered: 02/13/2013)

02/21/2013 11 MOTION for Extension of Time to File Response/Reply as to 5 MOTION to Dismisscomplaint by All Plaintiffs. (Parsons, Danielle) Motions referred to Magistrate JudgePhilip R. Lammens. (Entered: 02/21/2013)


6/17/2013 1


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02/22/2013 12 ORDER granting 11 Plaintiff's Agreed Motion for Extension of Time to the extent thatPlaintiff shall respond to Mr. Gillespie's Motion to Dismiss on or before the tenth dayafter the District Judge enters an order on the Report and Recommendation, and only if the Court does not remand this case. See Order for details. Signed by Magistrate JudgePhilip R. Lammens on 2/22/2013. (JLS) (Entered: 02/22/2013)

02/26/2013 13 NOTICE of designation under Local Rule 3.05 - track 2. Signed by Deputy Clerk on2/26/2013. (Attachments: # 1 consent forms) Copies mailed/emailed. (MAM) (Entered:02/26/2013)

02/26/2013 14 MOTION to Compel plaintiff's compliance with Rule 7.1 Disclosure Statement by NeilJ. Gillespie. (LAB) Motions referred to Magistrate Judge Philip R. Lammens. (Entered:02/27/2013)

02/26/2013 15 MOTION for Rule 11 sanctions against Danielle N. Parsons and McCalla Raymer, LLC by Neil J. Gillespie. (LAB) (Entered: 02/27/2013)

02/26/2013 16 MOTION for entry of Rule 55 Def ault Judgment as to Reverse Mortgage Solutions, Inc. by Neil J. Gillespie as Co-Trustees and Neil J. Gillespie. (LAB) Modified on 2/28/2013(MJT). (Entered: 02/27/2013)

03/05/2013 17 Verified OBJECTION to, and MOTION for relief from 12 ORDER by Neil J. Gillespieand Neil J. Gillespie as Co-Trustees. (LAB) Modified on 3/7/2013 (MJT). (Entered:03/06/2013)

03/06/2013 18 OBJECTION to 10 Report and Recommendations by Neil J. Gillespie, Neil J. Gillespieas Co-Trustees. (Attachments: # 1 Appendix Ex. 1-11)(LAB) (Entered: 03/06/2013)

03/07/2013 19 ORDER denying 6 Defendant Neil J. Gillespie's Motion for leave to proceed in forma pauperis/affidavit of indigency; adopting 10 Report and Recommendations; overruling18 Defendant Neil J. Gillespie's Objections and denying his request for leave to amend the notice of removal and to recuse the district judge and magistrate judge. The Clerk is

directed to remand this case to state court, terminate all pending motions, and close thefile. Signed by Senior Judge Wm. Terrell Hodges on 3/7/2013. (LRH) (Entered:03/07/2013)

03/11/2013 20 JUDGMENT entered. Civil appeals checklist attached. (Signed by Deputy Clerk) (LAB)(Entered: 03/11/2013)

04/08/2013 21 MOTION to Alter or Amend Judgment by Neil J. Gillespie and Neil J. Gillespie asCo-Trustees. (LAB) Modified on 4/10/2013 (LAB). (Entered: 04/10/2013)

04/08/2013 22 AFFIDAVIT of Neil J. Gillespie re: 21 MOTION to Alter or Amend Judgment by Neil J.Gillespie. (LAB) Modified on 4/10/2013 (LAB). (Entered: 04/10/2013)

04/10/2013 23 NOTICE OF APPEAL as to 19 Order on motion for leave to proceed in forma pauperis/affidavit of indigency and Order on Report and Recommendations by Neil J.Gillespie and Neil J. Gillespie as Co-Trustees. Filing fee not paid. (LAB) (Entered:04/10/2013)

04/10/2013 TRANSMITTAL of initial appeal package to USCA consisting of copies of notice of appeal, docket sheet, order/judgment being appealed, and motion, if applicable to USCAre 23 Notice of appeal. (LAB) (Entered: 04/10/2013)

04/12/2013 24 ORDER denying 21 Motion to Alter or Amend Judgment. Signed by Senior Judge Wm.Terrell Hodges on 4/12/2013. (LRH) (Entered: 04/12/2013)


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04/22/2013 ACKNOWLEDGMENT by USCA of receiving Notice of Appeal on 04/22/13 re 23 Notice of appeal. USCA number: 13-11585-B. (MJT) (Entered: 04/22/2013)

05/06/2013 25 MOTION for Leave to Appeal in forma pauperis by Neil J. Gillespie, Neil J. Gillespie asCo-Trustees. (LAB) (Entered: 05/07/2013)

05/06/2013 26 APPENDIX re 25 MOTION for Leave to Appeal in forma pauperis. (LAB) (Entered:05/07/2013)

05/06/2013 27 AFFIDAVIT of indigency by Neil J. Gillespie and Neil J. Gillespie as Co-Trustees.(LAB) (Entered: 05/07/2013)

05/09/2013 28 ORDER denying 25 Motion for Leave to Appeal in forma pauperis. Signed by Senior Judge Wm. Terrell Hodges on 5/9/2013. (LRH) (Entered: 05/09/2013)

05/10/2013 TRANSMITTAL to USCA forwarding 28 Order denying motion for leave to appeal informa pauperis re 23 Notice of appeal USCA number: 13-11585-B. (LAB) (Entered:05/10/2013)

05/21/2013 ACKNOWLEDGMENT by USCA of receiving IFP on Appeal Denied Order and Certified Copy of Docket Sheet on 05/15/13 re 23 Notice of appeal. USCA number:13-11585-b. (LAB) (Entered: 05/23/2013)

06/07/2013 29 NOTICE of filing The Florida Bar Case No. 20133090(5) by Neil J. Gillespie (MJT)(Entered: 06/07/2013)

06/12/2013 30 USCA Dismissal ORDER as to 23 Notice of appeal filed by Neil J. Gillespie, Neil J.Gillespie as Co-Trustees. Appeal dismissed sua sponte for lack of jurisdiction. EOD:06/12/13; USCA number: 13-11585-B. (MJT) (Entered: 06/12/2013)

PACER Service CenterTransaction Receipt

06/17/2013 10:47:08PACERLogin:

ng0053 Client Code: njg

Description: DocketReportSearchCriteria:

5:13-cv-00058-WTH-PRL

BillablePages: 4 Cost: 0.40


6/17/2013 1


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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 N

TR US TE E S , S E TTL E R S ANDBENEFCIARIES, UNKNOWN TENANTIN POSSESSION 1 AND UNKNOWN

TENANT IN POSSESSION 2,

Defendants. _____________________________________/

O R D E R

This mortgage foreclosure action was filed in state court on J anuary 9, 2013, and

was removed to this Court by Defendant Neil J . Gillespie, acting pro se , on February

4, 2013 (Doc. 1). On March 19, 2013, the Court remanded the case to state court

because this Court lacked subject matter jurisdiction (Doc. 19). The Court denied Mr.

Gillespies motion to alter or amend judgment on April 12, 2013 (Doc. 24).


4


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OCALA DIVISION


Plaintiff,




TR US T E E S , S E TTL E R S AND

BENEFCIARIES, UNKNOWN TENANTIN POSSESSION 1 AND UNKNOWN TENANT IN POSSESSION 2,

Defendants. _____________________________________/

O R D E R

This mortgage foreclosure action was filed in state court on J anuary 9, 2013, and

was removed to this Court by Defendant Neil J . Gillespie, acting pro se , on February

4, 2013 (Doc. 1). Gillespie then filed a motion (Doc. 6) for leave to proceed in forma

pauperis . The United States Magistrate J udge, by reference, initially considered that

motion and recommend that it be denied and that the case be remanded to state court


5


28/47

for lack of federal jurisdiction (Doc. 10). See 28 U.S.C. 1915(e)(2) and Fed. R. Civ.

P. 12(h)(3).

Gillespie filed lengthy Objections to the Magistrate J udges Report and

Recommendation (Doc. 18). In that document, (Id., p. 7, 11), Gillespie noted that the

undersigned has listed a financial interest in Bank of America. He then referred to

certain correspondence he had addressed to Bank of America, and to pending

investigations and/or administrative proceedings allegedly involving Bank of America,

none of which appeared to have any relationship to this case (Id., pp. 7-8, 12-17).Nevertheless, Gillespie declared on the strength of that evidence that Bank of America

was a real party in interest (Id., p. 9, 18), and that the undersigned had a duty to

recuse (Id., p. 26, 42).

The Court overruled Gillespies objections to the Magistrate J udges Report and

Recommendation; and, as he had recommended, the Court ordered that the case beremanded to the state court (Doc. 19). In that Order, the Court noted Gillespies

suggestion of recusal but observed that Bank of America is not listed as a party and

that despite his ipse dixit declaration that Bank of America is a party in interest, his

proffered justification for that assertion did not support it. 1

1Of course, if it did appear that Bank of America had any interest in this litigation, theundersigned would be disqualified under 28 U.S.C. 455(b)(4) and no motion would be required.

The statute is self executing.

-2-



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Gillespie has now filed a motion to alter or amend judgment pursuant to Fed. R.

Civ. P. 59(e) (Doc. 21). In fact the motion does not seek to alter or amend the

judgment at all. It is, instead, a motion to disqualify and, as such, is arguably moot.

As noted, however, 28 U.S.C. 455(b)(4) is self executing, and if the undersigned was

disqualified before the judgment was entered, the judgment would no doubt be void.

The Court will, therefore, address the motion on its merits.

Although Gillespies motion makes several arguments that adverse rulings are

indicative of bias and that senior federal judges are unconstitutional none meritfurther discussion except for his repeated assertion that Bank of America is a real party

in interest.

The record is still devoid of any evidence to support Gillespies claim. In fact, the

only pertinent document that is of record tends to affirmatively refute it. Attached to the

Plaintiffs Complaint is an Assignment dated March 27, 2012, months before thislitigation was commenced, whereby Bank of America assigned to the Plaintiff, Reverse

Mortgage Solutions, Inc., . . . all beneficial interest under that certain Mortgage

described below together with the note(s) and obligations therein described and the

money due and to become due thereon with interest and all rights secured or to accrue

under said Mortgage. (Doc. 2, p. 38).

Of course, as a matter of pure conjecture, it is conceivable that Bank of America

through some separate document or agreement may have retained some contingent

interest in the subject note(s) and mortgage, but 455 disqualifications cannot be

-3-



30/47

justified by speculation and conjecture. There is, to be sure, an absolute and automatic

duty to disqualify whenever it becomes established that the judge has a financial

interest . . . in a party to the proceeding. . . . 28 U.S.C. 455(b)(4). There is also a

concomitant duty, however, not to disqualify under 455 on the basis of a fanciful or

wholly speculative assertion. Otherwise, judges could be tempted to invoke the statute

as a basis for avoiding hard or distasteful cases, with resulting injury to the collegiality

of the court, and lawyers could be tempted to invoke the statute on transparently thin

grounds as a tool for forum shopping.In the language of the statute, the undersigned does not know that he has a

financial interest in a party to the proceeding, and does not have any personal bias

against Gillespie that would impel a sua sponte recusal.

The Motion to Alter or Amend J udgment (Doc. 21) is DENIED. 2

IT IS SO ORDERED.DONE and ORDERED at Ocala, Florida this 12th day of April, 2013.

Copies to: Counsel of RecordNeil J . Gillespie, pro seMaurya McSheehy

2 The Court acknowledges that on April 10, 2013, Mr. Gillespie filed a Notice of Appeal withthe Eleventh Circuit Court of Appeals (Doc. 23). Nevertheless, the Court has retained jurisdictionto consider the present motion. See Fed. R. App. P. 4(a)(4).

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U NITED S TATES D ISTRICT C OURTM IDDLE D ISTRICT OF F LORIDA

O CALA D IVISION

REVERSE MORTGAGESOLUTIONS, INC.,

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

-vs-

NEIL J. GILLESPIE, AS CO-TRUSTEES, et al.,

Defendants.

JUDGMENT IN A CIVIL CASE

Decision by Court. This action came to trial or hearing before the Court. The issues have beentried or heard and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

Pursuant to the Courts Order entered on March 7, 2013, this case is dismissed andremanded to the Circuit Court of the Fifth Judicial Circuit, in and for MarionCounty, Florida.

Date: March 11, 2013SHERYL L. LOESCH, CLERK

L. Burget By: L. Burget, Deputy Clerk

Copies furnished to:

Counsel of RecordUnrepresented Parties


6


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CIVIL APPEALS JURISDICTION CHECKLIST

1. Appealable Orders : Courts of Appeals have jurisdiction conferred and strictly limited by statute:

(a) Appeals from final orders pursuant to 28 U.S.C. Section 1291 : Only final orders and judgments of district courts,or final orders of bankruptcy courts which have been appealed to and fully resolved by a district court under 28U.S.C. Section 158, generally are appealable. A final decision is one that ends the litigation on the merits and leavesnothing for the court to do but execute the judgment. Pitney Bowes, Inc. V. Mestre, 701 F.2d 1365, 1368 (11th Cir.1983). A magistrate judges report and recommendation is not final and appealable until judgment thereon is entered

by a district court judge. 28 U.S.C. Section 636(c).

(b) In cases involving multiple parties or multiple claims , a judgment as to fewer than all parties or all claims is nota final, appealable decision unless the district court has certified the judgment for immediate review under Fed.R.Civ.P. 54(b), Williams v. Bishop, 732 F.2d 885, 885-86 (11th Cir. 1984). A judgment which resolves allissues except matters, such as attorneys fees and costs, that are collateral to the merits, is immediately appealable.Budinich v. Becton Dickinson & Co., 486 U.S. 196, 201, 108 S. Ct. 1717, 1721-22, 100 L.Ed.2d 178 (1988);LaChance v. Duffys Draft House, Inc., 146 F.3d 832, 837 (11th Cir. 1998).

(c) Appeals pursuant to 28 U.S.C. Section 1292(a) : Appeals are permitted from orders granting, continuing,modifying, refusing or dissolving injunctions or refusing to dissolve or modify injunctions... and from[i]nterlocutory decrees...determining the rights and liabilities of parties to admiralty cases in which appeals from finaldecrees are allowed. Interlocutory appeals from orders denying temporary restraining orders are not permitted.

(d) Appeals pursuant to 28 U.S.C. Section 1292(b) and Fed.R.App.P.5: The certification specified in 28 U.S.C.Section 1292(b) must be obtained before a petition for permission to appeal is filed in the Court of Appeals. Thedistrict courts denial of a motion for certification is not itself appealable.

(e) Appeals pursuant to judicially created exceptions to the finality rule: Limited exceptions are discussed in casesincluding, but not limited to: Cohen V. Beneficial Indus. Loan Corp., 337 U.S. 541,546,69 S.Ct. 1221, 1225-26, 93L.Ed. 1528 (1949); Atlantic Fed. Sav. & Loan Assn v. Blythe Eastman Paine Webber, Inc., 890 F. 2d 371, 376 (11thCir. 1989); Gillespie v. United States Steel Corp., 379 U.S. 148, 157, 85 S. Ct. 308, 312, 13 L.Ed.2d 199 (1964).

2. Time for Filing: The timely filing of a notice of appeal is mandatory and jurisdictional. Rinaldo v. Corbett, 256 F.3d 1276,1278 (11th Cir. 2001). In civil cases, Fed.R.App.P.4(a) and (c) set the following time limits:

(a) Fed.R.App.P. 4(a)(1) : A notice of appeal in compliance with the requirements set forth in Fed.R.App.P. 3 must befiled in the district court within 30 days after the entry of the order or judgment appealed from. However, if theUnited States or an officer or agency thereof is a party, the notice of appeal must be filed in the district court within60 days after such entry. THE NOTICE MUST BE RECEIVED AND FILED IN THE DISTRICT COURTNO LATER THAN THE LAST DAY OF THE APPEAL PERIOD - no additional days are provided formailing. Special filing provisions for inmates are discussed below.

(b) Fed.R.App.P. 4(a)(3) : If one party timely files a notice of appeal, any other party may file a notice of appeal within14 days after the date when the first notice was filed, or within the time otherwise prescribed by this Rule 4(a),whichever period ends later.

(c) Fed.R.App.P.4(a)(4) : If any party makes a timely motion in the district court under the Federal Rules of CivilProcedure of a type specified in this rule, the time for appeal for all parties runs from the date of entry of the order disposing of the last such timely filed motion.

(d) Fed.R.App.P.4(a)(5) and 4(a)(6) : Under certain limited circumstances, the district court may extend the time to filea notice of appeal. Under Rule 4(a)(5), the time may be extended if a motion for an extension is filed within 30 daysafter expiration of the time otherwise provided to file a notice of appeal, upon a showing of excusable neglect or goodcause. Under Rule 4(a)(6), the time may be extended if the district court finds upon motion that a party did not timelyreceive notice of the entry of the judgment or order, and that no party would be prejudiced by an extension.

(e) Fed.R.App.P.4(c) : If an inmate confined to an institution files a notice of appeal in either a civil case or a criminalcase, the notice of appeal is timely if it is deposited in the institutions internal mail system on or before the last dayfor filing. Timely filing may be shown by a declaration in compliance with 28 U.S.C. Section 1746 or a notarized

statement, either of which must set forth the date of deposit and state that first-class postage has been prepaid.

3. Format of the notice of appeal : Form 1, Appendix of Forms to the Federal Rules of Appellate Procedure, is a suitable format.See also Fed.R.App.P. 3(c). A pro se notice of appeal must be signed by the appellant

4. Effect of a notice of appeal : A district court loses jurisdiction (authority) to act after the filing of a timely notice of appeal,except for actions in aid of appellate jurisdiction or to rule on a timely motion of the type specified in Fed.R.App.P. 4(a)(4).

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OCALA DIVISION


Plaintiff,




TR US TE E S , S E TTL E R S ANDBENEFCIARIES, UNKNOWN TENANTIN POSSESSION 1 AND UNKNOWN

TENANT IN POSSESSION 2,

Defendants. _____________________________________/

ORDER REMANDING CASE

On J anuary 2, 2013, the Plaintiff, Reverse Mortgage Solutions, Inc., filed a

foreclosure action in the Circuit Court of the Fifth J udicial 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


7


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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 J udge issued a Report andRecommendation (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 J udge 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 J udges Report and Recommendation, as well as seeking recusal of both

the undersigned and the Magistrate J udge (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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The Magistrate J udge 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 cannotserve 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-2033-

Orl-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 J udge 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 cross-

claims 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

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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 & J oan 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-31GJ K, 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 causeof 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 J udges 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

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 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 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 J udges 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 ismistaken. 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.

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38/47

Lastly, Mr. Gillespie seeks to recuse the undersigned and the Magistrate J udge.

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 variousaccounts, does not appear to have anything to do with this case.

Mr. Gillespie seeks recusal of the Magistrate J udge on the grounds that the

Magistrate J udges report and recommendation contains misstatements of law and fact,

and therefore calls into question the Magistrate J udges fairness and impartiality. The

Magistrate J udge 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 J udges 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 J udges Report and Recommendation (Doc.

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

-6-



39/47

(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 J udge 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

J udicial Circuit, in and for Marion County, Florida; and

(5) The Clerk is further directed to enter judgment accordingly, terminate allother 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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40/47


OCALA DIVISION


INC.,

Plaintiff,

v. Case No: 5:13-CV-58-Oc-10PRL

NEIL J. GILLESPIE AS CO-TRUSTEES, MARK GILLESPIE ASCO-TRUSTEES, OAK RUNHOMEOWNERS ASSOCIATION, INC.,UNITED STATES OF AMERICA,

ELIZABETH BAUERLE, MARKGILLESPIE, NEIL J. GILLESPIE,DEVELOPMENT & CONSTRUCTIONCORPORATION OF AMERICA,UNKNOWN SPOUSE, UNKNOWNSPOUSE, UNKNOWN SPOUSE,UNKNOWNSETTLORS/BENEFICIARIES,UNKNOWN TRUSTEES, SETTLERSAND BENEFICIARIES, UNKNOWNTENANT IN POSSESSION 1 andUNKNOWN TENANT IN POSSESSION2

Defendants.

ORDER

This cause is before the Court on Plaintiffs Agreed Motion for Extension of Time (Doc.

11). Plaintiff seeks an extension of time to respond to Defendant, Neil Gillespies, Motion to

Dismiss from February 21, 2013, up to and including March 13, 2013, because it requires

additional information to file its response. Plaintiff represents that Mr. Gillespie agrees to the

relief requested.


8


41/47

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42/47


OCALA DIVISION


INC.,

Plaintiff,

v. Case No: 5:13-CV-58-Oc-10PRL

NEIL J. GILLESPIE AS CO-TRUSTEES,MARK GILLESPIE AS CO-TRUSTEES,OAK RUN HOMEOWNERSASSOCIATION, INC., UNITED STATESOF AMERICA, ELIZABETH BAUERLE,

MARK GILLESPIE, NEIL J. GILLESPIE,DEVELOPMENT & CONSTRUCTIONCORPORATION OF AMERICA,UNKNOWN SPOUSE, UNKNOWNSPOUSE, UNKNOWN SPOUSE,UNKNOWNSETTLORS/BENEFICIARIES,UNKNOWN TRUSTEES, SETTLERS ANDBENEFICIARIES, UNKNOWN TENANTIN POSSESSION 1 and UNKNOWNTENANT IN POSSESSION 2

Defendants.

REPORT AND RECOMMENDATION 1

This cause is before the Court on Defendant Neil Gillespies Affidavit of Indigency (Doc.

6), which the Court construes as a Motion for Leave to Proceed In Forma Pauperis . The Court

has also reviewed Mr. Gillespies Notice of Removal (Doc. 1), his Supplement to Affidavit of

Indigency (Doc. 8), and Plaintiffs Complaint (Doc. 2). For the reasons that follow, the

1Specific written objections may be filed in accordance with 28 U.S.C. ' 636, and Rule 6.02, Local Rules, M.D.

Fla., within fourteen (14) days after service of this report and recommendation. Failure to file timely objectionsshall bar the party from a de novo determination by a district judge and from attacking factual findings on appeal.


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- 2 -

undersigned respectfully recommends that Defendants Motion (Doc. 6) be denied and this case

be remanded to state court.

I. B ACKGROUND

On January 2, 2013, Plaintiff initiated this action in the Circuit Court of the Fifth Judicial

Circuit, in and for Marion County, Florida, against Mr. Neil Gillespie (and other Defendants) to

foreclose a reverse mortgage on real property in Marion County, Florida, pursuant to Fla. Stat.

26.012. (Doc. 2, 1). Subsequently, on February 4, 2013, Mr. Gillespie filed a Notice of

Removal (Doc. 1), removing this action to federal court pursuant to 28 U.S.C. 1441, and

alleging that this Court has jurisdiction per 28 U.S.C. 1331 (federal question jurisdiction) and 5U.S.C. 702 (Administrative Procedures Act) (APA). ( See Doc. 1, p.1 & 7).

II. D ISCUSSION

Prior to deciding whether Mr. Gillespie qualifies to proceed in forma pauperis , the Court

has the authority, pursuant to 28 U.S.C. 1915(e)(2), to determine whether Mr. Gillespie should

be permitted to proceed in forma pauperis by determining whether there is a factual and legal

basis . . . for the asserted wrong, however inartfully pleaded. Id. (quoting Watson v. Ault , 525

F.2d 886, 892 (5th Cir. 1976)). Critical to this analysis is a showing that the claim is within the

limited jurisdiction of this federal court. See Cogdell v. Wyeth , 366 F.3d 1245, 1247-48 (11th

Cir. 2004). This analysis is equally compelling where a Defendant seeks to proceed as a pauper

in a case he had improvidently removed. See HSBC Bank U.S.A., N.A. v. Anderson , 2012 WL

4896686, at *3 (M.D. Fla. Sept. 24, 2012) ( adopted by 2012 WL 4896686 (M.D. Fla. Sept. 24,

2012)) (emphasis added); see also U.S. Bank National Assn v. Cavalcante , 2012 WL 4466514,

at *3 (M.D. Fla. Sept. 11, 2012) ( adopted by 2012 WL 4466452 (M.D. Fla. Sept. 27, 2012)).

Upon a review of the Complaint and the file as a whole, the Court finds that it has no jurisdiction



44/47

- 3 -

over this state court matter, and recommends that Mr. Gillespies Motion to Proceed In Forma

Pauperis be denied and this case be remanded.

Removal statues are to be strictly construed against removal. Shamrock Oil & Gas Corp.

v. Sheets , 313 U.S. 100, 108, 61 S.Ct. 868, 85 L.Ed. 1214 (1941); Burns v. Windosor Ins. Co. , 31

F.3d 1092, 1095 (11th Cir. 1994) ([R]emoval statutes are construed narrowly; when the parties

dispute jurisdiction, uncertainties are resolved in favor of remand.). Any doubt as to proper

subject matter jurisdiction should be resolved against removal. Butler v. Polk , 592 F.2d 1293,

1296 (5th Cir. 1979). The removing party has the burden of proving that federal jurisdiction

exists by a preponderance of the evidence and the removing party must present facts establishingits right to remove. Williams v. Best Buy Co. , 269 F.3d 1316, 1319 (11th Cir. 2001). When the

defendant fails to do so, the case must be remanded. Id. at 1321.

There are two grounds for remanding a removed case: (1) lack of subject matter

jurisdiction; or (2) [a] procedural defect in the removal of the case. Russell Corp. v. American

Home Assurance Co. , 264 F.3d 1040, 1043-44 (11th Cir. 2001) (citations omitted). Upon review

of Mr. Gillespies Notice of Removal (Doc. 1) and Plaintiffs Complaint (Doc. 2), this case

should be remanded to state court because this Court lacks subject matter jurisdiction and there is

a procedural defect in the removal.

A. Subject Matter Jurisdiction

Federal courts are courts of limited jurisdiction and therefore, have an obligation to

inquire into their subject matter jurisdiction. See Kirkland v. Midland Mortgage Co. , 243 F.3d

1277, 1279-80 (11th Cir. 2001). In a given case, a federal district court must have at least one

of three types of subject matter jurisdiction: (1) jurisdiction under a specific statutory grant; (2)

federal question jurisdiction pursuant to 28 U.S.C. 1331; or (3) diversity jurisdiction pursuant



45/47

- 4 -

to 28 U.S.C. 1332(a). Baltin v. Alaron Trading, Corp. , 128 F.3d 1466, 1469 (11th Cir. 1997.)

Notably, the Courts subject matter jurisdiction over a case is determined by reference to the

well-pleaded complaint rule. Caterpillar, Inc. v. Williams , 482 U.S. 386, 392, 107 S.Ct. 2425,

2429 (1987). This rule provides that federal jurisdiction exists only when a federal question is

presented on the face of the plaintiffs properly-pleaded complaint. Id.

Counterclaims and affirmative defenses raised by a defendant cannot establish subject

matter jurisdiction. See Holmes Grp., Inc. v. Vornado Air Circulation Systems, Inc. , 535 U.S.

826, 122 S.Ct. 1889 (2002) ([A] counterclaim which appears as part of the defendants

answer, not as part of the plaintiffs complaint cannot serve as the basis for arising under jurisdiction); Beneficial Nat'l Bank v. Anderson, 539 U.S. 1, 6, 123 S.Ct. 2058, 156 L.Ed.2d 1

(2003) (To determine whether the claim arises under federal law, we examine the well

pleaded allegations of the complaint and ignore potential defenses.); Pan Am. Petroleum Corp.

v. Superior Court of Del., 366 U.S. 656, 663, 81 S.Ct. 1303, 6 L.Ed.2d 584 (1961) (noting that if

the plaintiff does not raise a federal question in the complaint, it is no substitute that the

defendant is almost certain to raise a federal defense); Bd. of Educ. of Atlanta v. Am. Fed'n of

State, Cnty. & Mun. Employees, 401 F. Supp. 687, 690 (N.D.Ga.1975) (Stated simply, a federal

district court's original federal question jurisdiction must be posited upon the plaintiff's pleading

of his own case, and not by defendant's response or even plaintiff's anticipation of a federal

element in that response.).

Here, Mr. Gillespie claims that this Court has federal question jurisdiction or jurisdiction

pursuant to the APA. ( See Doc. 1, 7). However, applying the well-pleaded complaint rule

and looking to the face of the Complaint, it is clear that the Complaint only alleges state law

claims; specifically, this is a mortgage foreclosure action pursuant to Florida law. ( See Doc. 2,



46/47

- 5 -

1). The Complaint simply does not assert any federal claims or a basis for diversity jurisdiction;

thus, the case should not have been removed. The fact that Mr. Gillespie has asserted a defense

in his Notice

civil appeal statement, 11cirr33-1b appendix-record

Documents