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Complaint, through Order on Fraud, 05-CA-7205, Gillespie v BRC (Exhibits 1-9)

Complaint, through Order on Fraud, 05-CA-7205, Gillespie v BRC (Exhibits 1-9)

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Published by Neil Gillespie
This case boils down to the veracity of a single sentence on the closing statement prepared and signed by Mr. Cook for BRC as of October 31, 2001, attached as Exhibit 2. The sentence states the following: "In signing this closing statement, I acknowledge that AMSCOT Corporation separately paid my attorneys $50,000.00 to compensate my attorneys for their claim against AMSCOT for court-awarded fees and costs." This sentence was later determined false. The closing statement is a fraud. There were no court-awarded fees of $50,000. As a matter of law it was impossible to have court-awarded fees as claimed by BRC and Mr. Cook because the federal trial court dismissed those claims with prejudice.

During the course of litigation with me, Mr. Rodems argued that the "claim" for "court-awarded fees and costs" actually refers to a fee-shifting provision of the federal Truth In Lending Act (TILA). In fact, the $50,000 "claim against AMSCOT for court-awarded fees and costs" is a fraud, a deliberate misrepresentation by Mr. Rodems. There were no attorneys fees awarded under TILA in this case. None. There was no possibility of an awarded of attorneys fees under TILA in this case because of prior court decisions in other cases known to Mr. Rodems, specifically the ACE and Payday Express cases litigated by BRC. Three different federal courts ruled that the transactions complained about predated the TILA rule. This happened in all three separate TILA lawsuits brought by Mr. Rodems’ predecessor firm and acquired by Barker, Rodems & Cook, PA. This is one example of Mr. Rodems’ misconduct, dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice in this matter.

1. Defendants’ central argument implodes on page 5 of its Reply dated October 10, 2005, paragraph 3 b. ii. Here Defendants argue that the $50,000 is for a claim for court-awarded fees, and not an actual fee award. This begs the question - without an actual court-awarded fee, there is no claim for a court-awarded fee. Because Defendants did not prevail in court, they cannot rely on a statutory claim for court-awarded fees, because there is none. This is how Defendants created the impression that the Appellate Court awarded fees, when in fact the it ruled that the parties bear their own costs and attorney’s fees. This is Defendants’ fraud on its own clients. Fraud is an exemption to the parole evidence rule, blocking Defendants reliance on Franz Tractor v. Case, 566 So. 2d 524.
This case boils down to the veracity of a single sentence on the closing statement prepared and signed by Mr. Cook for BRC as of October 31, 2001, attached as Exhibit 2. The sentence states the following: "In signing this closing statement, I acknowledge that AMSCOT Corporation separately paid my attorneys $50,000.00 to compensate my attorneys for their claim against AMSCOT for court-awarded fees and costs." This sentence was later determined false. The closing statement is a fraud. There were no court-awarded fees of $50,000. As a matter of law it was impossible to have court-awarded fees as claimed by BRC and Mr. Cook because the federal trial court dismissed those claims with prejudice.

During the course of litigation with me, Mr. Rodems argued that the "claim" for "court-awarded fees and costs" actually refers to a fee-shifting provision of the federal Truth In Lending Act (TILA). In fact, the $50,000 "claim against AMSCOT for court-awarded fees and costs" is a fraud, a deliberate misrepresentation by Mr. Rodems. There were no attorneys fees awarded under TILA in this case. None. There was no possibility of an awarded of attorneys fees under TILA in this case because of prior court decisions in other cases known to Mr. Rodems, specifically the ACE and Payday Express cases litigated by BRC. Three different federal courts ruled that the transactions complained about predated the TILA rule. This happened in all three separate TILA lawsuits brought by Mr. Rodems’ predecessor firm and acquired by Barker, Rodems & Cook, PA. This is one example of Mr. Rodems’ misconduct, dishonesty, fraud, deceit, misrepresentation, and conduct prejudicial to the administration of justice in this matter.

1. Defendants’ central argument implodes on page 5 of its Reply dated October 10, 2005, paragraph 3 b. ii. Here Defendants argue that the $50,000 is for a claim for court-awarded fees, and not an actual fee award. This begs the question - without an actual court-awarded fee, there is no claim for a court-awarded fee. Because Defendants did not prevail in court, they cannot rely on a statutory claim for court-awarded fees, because there is none. This is how Defendants created the impression that the Appellate Court awarded fees, when in fact the it ruled that the parties bear their own costs and attorney’s fees. This is Defendants’ fraud on its own clients. Fraud is an exemption to the parole evidence rule, blocking Defendants reliance on Franz Tractor v. Case, 566 So. 2d 524.

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Published by: Neil Gillespie on Sep 03, 2012
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09/06/2012

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~ ~ ~
 
CLtRr(
Of
Cii·1CUir
COURT
IN
THE CIRCUIT
COURT
OF
THE TIDRTEENTH
JUDICIALCIRCUITIN
AND
FOR
HILLSBOROUGH
COUNTY,
FLORIDAGENERAL
CIVIL
DIVISION
NEIL
J.
GILLESPIE,Plaintiff,CASE
NO.OSClJJdJs
vs.BARKER, RODEMS
&
COOK, P.A.,
DIVISION:_E
_a Florida corporation,WILLIAM
1.
COOK,DEMAND FOR TRIAL
BY
JURYDefendants.
--------
---'1
COMPLAINT
FOR
BREACH
OF
CONTRACT
AND
FRAUD
Plaintiff, NEIL
J.
GILLESPIE, sues defendants, BARKER, RODEMS,
&
COOK,P.A., a Florida professional service corporation, and WILLIAM
J.
COOK, a corporateofficer and natural person, and alleges:
Parties
1.
Plaintiff, NEIL
J.
GILLESPIE, resides in Ocala, Marion County, Florida.(Hereinafter called "GILLESPIE").2. Defendant BARKER, RODEMS
&
COOK, P.A. is a Florida professional servicecorporation and law fInn with offices located at 300 W. Platt Street, Suite 150,
in
the city
of
Tampa, Hillsborough County, Florida, 33606. (Hereinafter called the
"LAW
FIRM").3. Defendant WILLIAM
J.
COOK
is a lawyer, a member
of
the Florida Bar, acorporate officer
of
the
LAW
FIRM, and a natural person. (Hereinafter called "COOK").
1
 
Jurisdiction
and
Venue
4. This is an action for damages that exceed $15,000.00.
5.
The events complained
of
occurred in the city
of
Tampa, Hillsborough County,Florida, 33606. The LAW FIRM has offices located at 300 W. Platt Street, Suite 150,Tampa, Hillsborough County, Florida, 33606.
Background Information
6. GILLESPIE hired the LAW FIRM to represent
him
in
litigation with AmscotCorporation. GILLESPIE and the LAW FIRM had a written Representation Contract.The litigation failed and Amscot settled for business reasons and to avoid an appeal. TheLAW FIRM was not satisfied with its contractual entitlement to 45%
of
the TotalRecovery for attorney's fees. The LAW FIRM wanted more money.
In
fact, the LAWFIRM took over 90%
ofthe
Total Recovery. In an effort to break the RepresentationContract and legitimize taking 90%
of
the Total Recovery, COOK used deceit as describedin this Complaint. Ultimately though, COOK lied to GILLESPIE about a Court ruling.COOK told GILLESPIE that the
United States Court
of
Appeals
for
the Eleventh Circuit
awarded the LAW FIRM $50,000 in attorney's fees and costs, triggering a ''whichever ishigher clause" for Court awards. The LAW FIRM then created a false Closing Statementto effect the deception. In fact, GILLESPIE later discovered that the
United States Court
of
Appeals
never awarded $50,000 to the LAW FIRM, but ruled that each party must beartheir own costs and attorney's fees. The LAW FIRM's unjust enrichment was $18,675.54.
COUNT I -BREACH
OF
CONTRACT
7. GILLESPIE realleges and incorporates by reference paragraphs 1 through 6, andalleges and incorporates
by
reference paragraphs 22 through 51.Page -2
 
8. GILLESPIE entered into a written Class Representation Contract with the LAWFIRM to perfonn legal services. (Hereinafter the "Representation Contract"). (Exhibit 1).9. The legal service
perfonned
by the LAW FIRM was a contingency lawsuit, furtheridentified as the matter styled Eugene R. Clement. et
at
v. Amscot Corporation, Case No.8:99-cv-2795-T-26C
in
the United States District Court, Middle District
of
Florida,Tampa Division; and on appeal Eugene R. Clement,
et
al. v. Amscot Corporation, CaseNo. 01-14761-A
in
the United States Court
of
Appeals, For the Eleventh Circuit. (Hereinafter called the "Action"). The subject matter was "payday loan" consumer litigation.10. There were three plaintiffs
in
the Action: Eugene R. Clement, Gay
Ann
Blomefield, and Neil Gillespie.11. The Action sought class action status
but
the
LAW
FIRM's
various motions forclass action status were denied by the Court.12. The Action settled
in
GILLESPIE's favor
on
October 30, 2001.
The
Actionsettled for business reasons,
and
the
LAW
FIRM did not prevail
on
the merits or appeal.13. The Total Recovery for the Action was $56,000 (Exhibit 2).14. The
LAW
FIRM refused to honor the
tenns
of
the Representation Contract withGILLESPIE when disbursing his share
of
the $56,000 Total Recovery.15. Under the
tenns
and conditions
of
the Representation Contract, and Florida
Bar
Rule 4-1.5(f)(4)(B)(i), the
LAW
FIRM was entitled to $31,325.46 calculated as follows:a. Attorney's fees
of
$25,200 (45%
ofthe
Total Recovery);
and
b. Cost and expenses, $3,580.67; andc. Expenses paid to a fonner law finn, $2,544.79 (Jonathan L. Alpert).Page -3

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