defendants’ verified motion to stike plaintiff’s motion to default

THIS IS NOT A COMMERCIAL FORCLOSURE IN THE CIRCUIT COURT OF THEFIFTH JUDICIAL CIRCUIT FLORIDAIN AND FOR MARION COUNTY

REVERSE MORTGAGE SOLUTIONS, INC.,CASE NO.: 2013-CA-000115

Plaintiff, 42-2013-CA-000115-AXXX-XX

vs. Residential HECM Foreclosure CaseFlorida Homestead of Neil J. Gillespie

NEIL J. GILLESPIE AND MARK GILLESPIE AS CO-TRUSTEES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENT DATED FEBRUARY 10, 1997, ET AL.

Defendants.________________________________________/

DEFENDANTS’ VERIFIED MOTION TO STIKE PLAINTIFF’S MOTION TO DEFAULTF.S. ch. 702, § 702.015, Rule 1.100(c)(2), Rule 1.115(a)-(e), Rule 1.140(f), Rule 1.150(a)

Defendant Neil J. Gillespie, individually, and as former Trustee (F.S. Ch. 736 Part III) of

the terminated Gillespie Family Living Trust Agreement Dated February 10, 1997 (“Terminated

Trust”), an indigent non-lawyer, unable to obtain adequate counsel, a consumer of legal and court

services affecting interstate commerce, a consumer of personal, family and household goods and

services, consumer transactions in interstate commerce, a person with disabilities, and a vulnerable

adult, henceforth in the first person, reluctantly appears pro se, and files this verified motion to

strike Plaintiff’s Motion to Default under F.S. ch. 702, § 702.015, Florida Rules of Civil Procedure

Rule 1.100(c)(2), Rule 1.115(a)-(e), Rule 1.140(f), Rule 1.150(a), and states:

1. I move to strike the Plaintiff’s Motion to Default, and Default, under Rule 1.140(f):

RULE 1.140. DEFENSES(f) Motion to Strike. A party may move to strike or the court may strike redundant,immaterial, impertinent, or scandalous matter from any pleading at any time.

2. I move to strike the Plaintiff’s Motion to Default, and Default, under Rule 1.150(a):

RULE 1.150. SHAM PLEADINGS

Filing # 36473683 E-Filed 01/12/2016 04:13:03 PM

DEFENDANTS’ VERIFIED MOTION TO STIKE PLAINTIFF’S MOTION TO DEFAULT January 12, 2016F.S. ch. 702, § 702.015, Rule 1.100(c)(2), Rule 1.115(a)-(e), Rule 1.140(f), Rule 1.150(a)

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(a) Motion to Strike. If a party deems any pleading or part thereof filed by another partyto be a sham, that party may move to strike the pleading or part thereof before the causeis set for trial and the court shall hear the motion, taking evidence of the respectiveparties, and if the motion is sustained, the pleading to which the motion is directed shallbe stricken. Default and summary judgment on the merits may be entered in thediscretion of the court or the court may permit additional pleadings to be filed for goodcause shown.(b) Contents of Motion. The motion to strike shall be verified and shall set forth fullythe facts on which the movant relies and may be supported by affidavit. No traverse ofthe motion shall be required.

3. Plaintiff’s Motion to Default, Filing # 36269740 E-Filed 01/07/2016 12:55:31 PM, shows a

wrong filing date of January 7, 2015 (Exhibit 1).

Plaintiff’s Motion to Default-Default Entered (not entered), Filing # 36269740 E-Filed

01/07/2016 12:55:31 PM, shows a wrong filing date of January 7, 2015 (Exhibit 2).

I demand strict compliance with all legal process used by the Plaintiff to foreclose my

Florida residential homestead property.

4. On January 8, 2016 I filed 4 responses to the Plaintiff’s Notice of Action to Foreclose:

A. Plaintiff’s Notice of Action to Foreclose the UNKNOWN SETTLORSBENEFICIARIES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENTDATED FEBRUARY 10, 1997.Filing # 36307811 E-Filed 01/08/2016 09:22:08 AM

B. Plaintiff’s Notice of Action to Foreclose the UNKNOWN SETTLORSBENEFICIARIES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENTDATED FEBRUARY 10, 1997, 8092 SW 115TH LOOP, OCALA, FL 34481.Filing # 36314514 E-Filed 01/08/2016 10:40:40 AM

C. Plaintiff’s Notice of Action to Foreclose the UNKNOWN SPOUSE OFELIZABETH BAUERLEFiling # 36309703 E-Filed 01/08/2016 09:47:53 AM

D. Plaintiff’s Notice of Action to Foreclose the UNKNOWN SPOUSE OFELIZABETH BAUERLE, 6356 SW 106th Place, Ocala, Florida, 34476.Filing # 36311213 E-Filed 01/08/2016 10:05:16 AM


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5. The Plaintiff filed an improper Motion for Default given I filed DEFENDANTS’

MOTION TO EXTEND TIME TO RESPOND to and including January 7, 2016, Filing #

35941683 E-Filed 12/28/2015 03:45:12 PM. Plaintiff’s motion is wrongly dated January 7, 2015.

6. I notified the Court January 11, 2016 additional time was required for verification of

marriage records for the unknown spouse of Elizabeth Bauerle, n.k.a. Elizabeth Bidgood, see

NOTICE OF FILING BY DEFENDANT NEIL J. GILLESPIE Verification of Marriage

Records, Filing # 36416149 E-Filed 01/11/2016 05:11:25 PM.

7. The Plaintiff knowingly and wrongly filed this action as a “commercial foreclosure” on

its civil cover sheet (Exhibit 3) violation of Rule 1.100(c)(2) Pleadings and Motions, when in

fact the Plaintiff and its counsel knows this is a residential foreclosure of my Florida homestead.

8. On February 7, 2015, I filed my affidavit of residential homestead,

AFFIDAVIT OF NEIL J. GILLESPIE OF RESIDENTIAL HOMESTEADTHIS IS NOT A COMMERCIAL FORCLOSUREFiling # 23497600 E-Filed 02/07/2015 11:56:00 PM

9. I notified Gregory C. Harrell, General Counsel to David R. Ellspermann, Marion County

Clerk of Court & Comptroller by letter December 24, 2014 (Exhibit 4) of the Clerk’s duty and

the civil cover sheet (form 1.997), Rule 1.100(c)(2), in part:

Mr. Harrell, under Rule 1.100(c)(2) “...all proceedings in the action shall be abated untila properly executed cover sheet is completed and filed...”. This is the Clerk’s duty, see

Rule 1.100(c)(2) Pleadings and Motions.

(2) A civil cover sheet (form 1.997) shall be completed and filed with the clerk at thetime an initial complaint or petition is filed by the party initiating the action. If the coversheet is not filed, the clerk shall accept the complaint or petition for filing; but allproceedings in the action shall be abated until a properly executed cover sheet iscompleted and filed. The clerk shall complete the civil cover sheet for a party appearingpro se.


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Currently the civil cover sheet (form 1.997) is not “properly executed” as completed andfiled. The Clerk has a ministerial duty under Rule 1.100(c)(2), “...all proceedings in theaction shall be abated until a properly executed cover sheet is completed and filed.”.

As of today Clerk David R. Ellspermann has not abated the proceedings until a properly

executed cover sheet is completed and filed. Rule 1.100(c)(2).

10. The Plaintiff has failed to comply with Florida Statutes Chapter 702, Foreclosure of

Mortgages and Statutory Liens, and section 702.015 Elements of complaint; lost, destroyed, or

stolen note affidavit. The Plaintiff, inter alia, has not filed the original note with the Clerk.

11. The Plaintiff has failed to comply with Florida Rules of Civil Procedure, Rule 1.115,

Pleading Mortgage Foreclosures and subparts (a) through (e). The Plaintiff, inter alia, has not

filed the original note with the Clerk.

WHEREFORE, I move the Court to dismiss with prejudice Plaintiff’s entire action. In the

alternative, I move the Court to strike the Plaintiff’s Motion to Default, and Default.

VERIFICATION OF NEIL J. GILLESPIE

Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged

therein are true and correct to the best of my knowledge and belief.

RESPECTFULLY SUBMITTED January 12, 2016.

Neil J. Gillespie, individually, and former Trustee,F.S. Ch. 736 Part III, of the Terminated Trust8092 SW 115th LoopOcala, Florida 34481 Phone: 352-854-7807Email: [email protected]


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Service List January 12, 2016

I hereby certify the following names were served by email today January 12, 2016through the Florida Portal.

Neil J. Gillespie

Mr. Curtis Wilson, Esq. Ms. Colleen Murphy Davis, AUSAMcCalla Raymer, LLC 400 N. Tampa Street, Suite 3200225 E. Robinson Street, Ste. 660 Tampa, FL 33602Orlando, FL 32801 Email: [email protected]: [email protected] [email protected]

Gregory C. Harrell David R. Ellspermann Marion County ClerkGeneral Counsel to David R. Ellspermann, of Court & ComptrollerMarion County Clerk of Court & Comptroller P.O. Box 1030P.O. Box 1030 Ocala, Florida 34478-1030Ocala, Florida 34478-1030 Email: [email protected]: [email protected]

Development & Construction Corporation Oak Run Homeowners Association, Inc.of America, c/o Carol Olson, Vice President c/o Board of Directors, [email protected] Administration and Secretary-Treasurer,for RA Priya Ghumman10983 SW 89 AvenueOcala, FL 34481Email: [email protected]

Neil J. Gillespie and Mark Gillespie as Co-Trustees of the Gillespie Family Living TrustAgreement dated February 10, 19978092 SW 115th Loop Ocala, FL 34481Email: [email protected]: [email protected]

Neil J. Gillespie Mark Gillespie8092 SW 115th Loop 7504 Summer Meadows DriveOcala, FL 34481 Ft. Worth, TX 76123Email: [email protected] Email: [email protected]

Unknown spouse of Mark Gillespie n/k/a Joetta Gillespie7504 Summer Meadows Drive


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Ft. Worth, TX 76123Email: [email protected]

Unknown Settlors/Beneficiaries of The Gillespie Family Living Trust Agreement datedFebruary 10, 19978092 SW 115th LoopOcala, FL 34481Email: [email protected]

Elizabeth Bauerle n/k/a Elizabeth Bidwood Unknown spouse of Elizabeth Bauerle7504 Summer Meadow Drive 6356 SW 106th PlaceFt. Worth, TX 76123 Ocala, FL 34476Email: [email protected] Email: [email protected]

Filing # 36269740 E-Filed 01/07/2016 12:55:31 PM

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Filing # 36473683 E-Filed 01/12/2016 04:13:03 PM

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Filing # 36473683 E-Filed 01/12/2016 04:13:03 PM

Form 1.997 CIVIL COVER SHEET

The civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form sh~lI~be.fi~d by the plaintiff or petitioner for the use of the Clerk of the Court for the purpose of reporting judicial workload data pursuani··t<Y Ftbrlda Statutes Section 25.075.

I. CASE STYLE

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MARION COUNTY

Plaintiff REVERSE MORTGAGE SOLUTIONS, INC.

Case # Judge:

l 3. - \ \ £:- L.ea=

vs.

Defendant NEIL J. GILLESPIE AND MARK GILLESPIE AS CO-TRUSTEES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENT DATED FEBRUARY 10, 1997, et ale .~ '~"

II. TYPE OF CASE (If the case fits more than one type of case, select the most definitive category.) If the most descriptive label is a subcategory (is indented under a broader category), place an "x" in both the main category and subcategory boxes.

Condominium Homestead residential foreclosure SO • $50,000

Contracts and indebtedness Homestead residential foreclosure $50,00 I -$249,999

Eminent domain Homestead residential foreclosure S250,000 or more

Auto negligence Nonhomestead residential foreclosu.re

Negligence - other SO· $50,000

Business governance Nonhomestead residential foreclosure

Business torts $50,001 - $249,999

EnvironmentallToxic tort Nonhomestead residential foreclosure ,_.. f::-' ..... $250,000 or more :.= ~ ~-'~ :'::'~ (,-.)Third party indemnification ;.... -. ( ....

Construction defect Other real property actions $0 -~~:s..O~?p'O ~~:: - _~ r': I

Mass tort Other real property actions 550;00:" • $249~9 --- ~~I'

~.

Negligent security Other real property actions $25~09Q'or mor\~ ;,. _ _ , __" IJ ...-.. . I

Nursing home negligence Professional malpractice =:: ':--:: :'-~ :: ..... " .._,,' ...... f~,?

Premises liability - c~mmercial Malpractice • business :";: ~?; .r r-~:;.~~ U1

0Premises liability • residential Malpractice - medical . ' Z

Products liability Malpractice .. other professional

X Real PropertylMortgage Foreclosure Other ~

Commercial foreclosure SO .. $50,000 AntitrustlTrade regulation

.X_Commercial foreclosure 550,001 - $249,999 Business transactions

Commercial foreclosure 5250,000 or more Constitutional challenge - statute or ordinance

Constitutional challenge .. proposed amendment . Libel/Slander

Shareholder derivative action Corporate trusts

\ 960921 12..02121-2

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Filing # 36473683 E-Filed 01/12/2016 04:13:03 PM

II. TYPE OF CASE (If the case fits more than one type of case, select the most definitive category.) If the most descriptive label is a subcategory (is indented under 8 broader category), place an "x" in both the main c~tegory and subcategory boxes.

.'0... . .\

Condominium .~

Homestead residential foreclosure $0 • $50,000

Discrimination - employment or other Securities litigation

Insurance claims Trade secrets

Intel1ectual property Trust litigation

III. REMEDIES SOUGHT (check all that apply): X monetary;

nonmonetary declaratory or injunctive relief;

punitive

IV. NUMBER OF CAUSES OF ACTION: [

(specify)

~ IS THIS CASE A CLASS ACTION LAWSUIT?

yes

X no

VI. HAS NOTICE OF ANY KNOWN RELATED CASES BEEN FILED?

X no

yes If "yes," list all related cases by name, case number, and court.

VII. IS JURY TRIAL DEMANDED IN COMPLAINT? yes

X no

Signatu

d in this cover sheet is accurate to the best of my knowledge and belief.

la. Bar# 0029364

Attorney or party (Bar # if attorney)

Danielle N. Parsons

960921 12-02121-2

VIA Email [email protected] December 24, 2014Gregory C. HarrellGeneral Counsel to David R. EllspermannMarion County Clerk of Court & ComptrollerOcala, Florida 34475

RE: Clerk’s duty and the civil cover sheet (form 1.997), Rule 1.100(c)(2).Reverse Mortgage Solutions, Inc. vs. Neil J. Gillespie, et al., Case No. 13-115-CAT

Dear Mr. Harrell:

You emailed me December 09, 2014 at 4:59 PM about the civil cover sheet (form 1.997):

-The case was designated as a commercial foreclosure by plaintiff's counsel in the civilcover sheet that the plaintiff is responsible for preparing and filing at the outset of thecase. You will need to take the matter up with the court and/or the plaintiff however youdeem appropriate if you dispute the plaintiff's characterization of the case, as the Clerkhas no say in that.

Mr. Harrell, under Rule 1.100(c)(2) “...all proceedings in the action shall be abated until aproperly executed cover sheet is completed and filed...”. This is the Clerk’s duty, see

Rule 1.100(c)(2) Pleadings and Motions.

(2) A civil cover sheet (form 1.997) shall be completed and filed with the clerk at thetime an initial complaint or petition is filed by the party initiating the action. If the coversheet is not filed, the clerk shall accept the complaint or petition for filing; but allproceedings in the action shall be abated until a properly executed cover sheet iscompleted and filed. The clerk shall complete the civil cover sheet for a party appearingpro se.

Currently the civil cover sheet (form 1.997) is not “properly executed” as completed and filed.The Clerk has a ministerial duty under Rule 1.100(c)(2), “...all proceedings in the action shall beabated until a properly executed cover sheet is completed and filed.”.

When can I expect the Clerk to fulfill its ministerial duties under Rule 1.100(c)(2)?

Sincerely,

Neil J. Gillespie 8092 SW 115th Loop Email: [email protected] EnclosuresOcala, Florida 34481 Phone: 352-854-7807

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Filing # 36473683 E-Filed 01/12/2016 04:13:03 PM

RULE 1.100 FLORIDA RULES OF CIVIL PROCEDURE RULE 1.110

CIV-24

such; an answer to a crossclaim if the answer contains a crossclaim; a third-party complaint if a person who was not an original party is summoned as a third-party defendant; and a third-party answer if a third-party complaint is served. If an answer or third-party an-swer contains an affirmative defense and the opposing party seeks to avoid it, the opposing party shall file a reply containing the avoidance. No other pleadings shall be allowed.

(b) Motions. An application to the court for an or-der shall be by motion which shall be made in writing unless made during a hearing or trial, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The require ment of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion. All notices of hearing shall specify each motion or other matter to be heard.

(c) Caption.

(1) Every pleading, motion, order, judgment, or other paper shall have a caption containing the name of the court, the file number, the name of the first party on each side with an appropriate indication of other parties, and a designation identifying the party filing it and its nature or the nature of the order, as the case may be. All papers filed in the action shall be styled in such a manner as to indicate clearly the subject mat-ter of the paper and the party requesting or obtaining relief.1

(2) A civil cover sheet (form 1.997) shall be com-pleted and filed with the clerk at the time an initial complaint or petition is filed by the party initiating the action. If the cover sheet is not filed, the clerk shall accept the complaint or petition for filing; but all pro-ceedings in the action shall be abated until a properly executed cover sheet is completed and filed. The clerk shall complete the civil cover sheet for a party appear-ing pro se.

(3) A final disposition form (form 1.998) shall be filed with the clerk by the prevailing party at the time of the filing of the order or judgment which disposes of the action. If the action is settled without a court order or judgment being entered, or dismissed by the par-ties, the plaintiff or petitioner immediately shall file a final disposition form (form 1.998) with the clerk.

The clerk shall complete the final disposition form for a party appearing pro se, or when the action is dis-missed by court order for lack of prosecution pursuant to rule 1.420(e).

(d) Motion in Lieu of Scire Facias. Any relief available by scire facias may be granted on motion after notice without the issuance of a writ of scire facias.

1.E.g., “Order Denying Plaintiff’s Motion for Summary Judg-ment,” “Defendant’s Motion to Compel,” “Order Denying Defen-dant’s Motion to Dismiss,” “Final Judgment for Plaintiff,” etc.

Committee Notes

1971 Amendment. The change requires a more complete desig-nation of the document that is filed so that it may be more rapidly identified. It also specifies the applicability of the subdivision to all of the various documents that can be filed. For example, a motion to dismiss should now be entitled “defen dant’s motion to dismiss the complaint” rather than merely “motion” or “motion to dismiss.”

1972 Amendment. Subdivision (a) is amended to make a reply mandatory when a party seeks to avoid an affirmative defense in an answer or third-party answer. It is intended to eliminate thereby the problems exemplified by Tuggle v. Maddox, 60 So. 2d 158 (Fla. 1952), and Dickerson v. Orange State Oil Co., 123 So. 2d 562 (Fla. 2d DCA 1960).

1992 Amendment. Subdivision (b) is amended to require all notices of hearing to specify the motions or other matters to be heard.

RULE 1.110. GENERAL RULES OF PLEADING

(a) Forms of Pleadings. Forms of action and tech-nical forms for seeking relief and of pleas, pleadings, or motions are abolished.

(b) Claims for Relief. A pleading which sets forth a claim for relief, whether an original claim, counter-claim, crossclaim, or third-party claim, must state a cause of action and shall contain (1) a short and plain statement of the grounds upon which the court’s juris-diction depends, unless the court already has jurisdic-tion and the claim needs no new grounds of jurisdic-tion to support it, (2) a short and plain statement of the ultimate facts showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief to

Form 1.997 CIVIL COVER SHEET

The civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law. This form sh~lI~be.fi~d by the plaintiff or petitioner for the use of the Clerk of the Court for the purpose of reporting judicial workload data pursuani··t<Y Ftbrlda Statutes Section 25.075.

I. CASE STYLE

IN THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT OF FLORIDA IN AND FOR MARION COUNTY

Plaintiff REVERSE MORTGAGE SOLUTIONS, INC.

Case # Judge:

l 3. - \ \ £:- L.ea=

vs.

Defendant NEIL J. GILLESPIE AND MARK GILLESPIE AS CO-TRUSTEES OF THE GILLESPIE FAMILY LIVING TRUST AGREEMENT DATED FEBRUARY 10, 1997, et ale .~ '~"

II. TYPE OF CASE (If the case fits more than one type of case, select the most definitive category.) If the most descriptive label is a subcategory (is indented under a broader category), place an "x" in both the main category and subcategory boxes.

Condominium Homestead residential foreclosure SO • $50,000

Contracts and indebtedness Homestead residential foreclosure $50,00 I -$249,999

Eminent domain Homestead residential foreclosure S250,000 or more

Auto negligence Nonhomestead residential foreclosu.re

Negligence - other SO· $50,000

Business governance Nonhomestead residential foreclosure

Business torts $50,001 - $249,999

EnvironmentallToxic tort Nonhomestead residential foreclosure ,_.. f::-' ..... $250,000 or more :.= ~ ~-'~ :'::'~ (,-.)Third party indemnification ;.... -. ( ....

Construction defect Other real property actions $0 -~~:s..O~?p'O ~~:: - _~ r': I

Mass tort Other real property actions 550;00:" • $249~9 --- ~~I'

~.

Negligent security Other real property actions $25~09Q'or mor\~ ;,. _ _ , __" IJ ...-.. . I

Nursing home negligence Professional malpractice =:: ':--:: :'-~ :: ..... " .._,,' ...... f~,?

Premises liability - c~mmercial Malpractice • business :";: ~?; .r r-~:;.~~ U1

0Premises liability • residential Malpractice - medical . ' Z

Products liability Malpractice .. other professional

X Real PropertylMortgage Foreclosure Other ~

Commercial foreclosure SO .. $50,000 AntitrustlTrade regulation

.X_Commercial foreclosure 550,001 - $249,999 Business transactions

Commercial foreclosure 5250,000 or more Constitutional challenge - statute or ordinance

Constitutional challenge .. proposed amendment . Libel/Slander

Shareholder derivative action Corporate trusts

\ 960921 12..02121-2

II. TYPE OF CASE (If the case fits more than one type of case, select the most definitive category.) If the most descriptive label is a subcategory (is indented under 8 broader category), place an "x" in both the main c~tegory and subcategory boxes.

.'0... . .\

Condominium .~

Homestead residential foreclosure $0 • $50,000

Discrimination - employment or other Securities litigation

Insurance claims Trade secrets

Intel1ectual property Trust litigation

III. REMEDIES SOUGHT (check all that apply): X monetary;

nonmonetary declaratory or injunctive relief;

punitive

IV. NUMBER OF CAUSES OF ACTION: [

(specify)

~ IS THIS CASE A CLASS ACTION LAWSUIT?

yes

X no

VI. HAS NOTICE OF ANY KNOWN RELATED CASES BEEN FILED?

X no

yes If "yes," list all related cases by name, case number, and court.

VII. IS JURY TRIAL DEMANDED IN COMPLAINT? yes

X no

Signatu

d in this cover sheet is accurate to the best of my knowledge and belief.

la. Bar# 0029364

Attorney or party (Bar # if attorney)

Danielle N. Parsons

960921 12-02121-2

defendants’ verified motion to stike plaintiff’s motion to default

Documents