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Civil Appeal Statement, 11CirR33-1b Appendix-Record

Civil Appeal Statement, 11CirR33-1b Appendix-Record

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Published by Neil Gillespie
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 void a contract which is voidable because of incapacity, the mortgagor must establish that the mortgagee had knowledge of the "incapacity and were ... not bona fide mortgagees for value." (See Weisberg v
DeMeo, 254 AD2d 351, 351 [1998].)
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 void a contract which is voidable because of incapacity, the mortgagor must establish that the mortgagee had knowledge of the "incapacity and were ... not bona fide mortgagees for value." (See Weisberg v
DeMeo, 254 AD2d 351, 351 [1998].)

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Published by: Neil Gillespie on Jul 03, 2013
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10/07/2013

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File Stamp
Rev.
2/11
UNITED
STATES
COURT
OFAPPEALS
FOR
THE ELEVENTH
CIRCUIT
CIVIL
APPEAL
STATEMENT
13-11585-b
Please
TYPE.
Attach additional
pages
if
necessary.
11th Circuit Docket Number:Caption:
REVERSE MORTGAGE SOLUTIONS, INC.,
v.
District and Division:
Middle District, Florida, Ocala Division
Name
of
Judge:
Hon. Wm. Terrell Hodges
Nature
of
Suit:
remove HECM reverse mort forclosue
Date Complaint Filed:
removed Feb-04-2013
District Court Docket Number:
5.13-cv-58-0c-WTH-PRLNEIL
J.
GILLESPIE AS CO-TRUSTEES, ET AL.
Date Notice
of
Appeal Filed:
April-10-2013
DCross
Appeal DClass Action
Has
this matter previously been before this court?
UNITED STATES OF AMERICA, ON BEHALF
DYes
iii
No
OF THE SECRETARY OF HOUSING AND
If
Yes,
provide
URBAN DEVELOPMENT
(a)
Caption:(b) Citation:
(c)
Docket Number:Attorney Name Mailing Address
For
Appellant:
PRO SE -NON-LAWYER8092
SW
115th Loop
D Plaintiff
Neil
J.
Gillespie, SeeOcala, Florida 34481
iii
Defendant
The Florida Bar, Unlicensed
D Other (Specify)
Practice
of
Law Investigation
of
Neil
J.
Gillespie, Case No.20133090(5), May 14,2013.
For
Appellee:
Curtis Wilson225 E Robinson St., Suite 660
iii
Plaintiff
Danielle N. ParsonsOrlando, FL 32801
D Defendant
McCalla Raymer, LLC
D Other (Specify)
Please
CIRCLE/CHECK/COMPLETE
the items below and
on
page
2
that apply.
DDJurisdiction Nature
of
JudgmentType
of
Order ReliefTelephone,
Fax,
and Email
neilgillespie@mfi.netPhone: 352-854-7807caw@mccallaraymer.comdnp@mccallaraymer.comPhone: 407-674-1850
Diversity
US
Plaintiff
iii
Federal Question
iii
US
Defendant
iii
Final
Judgment,
28
USC
1291D Interlocutory Order,
28
USC
1292(a)(l)
o
Final
Agency Action (Review)
o
Interlocutory Order Certified,
28
USC
1292(b)
o
Interlocutory Order,Qualified Immunity
o
54(b)
iii
Dismissal/JurisdictionD Default JudgmentD Summary JudgmentD InjunctionD Judgment/Bench TrialD Judgment/Jury VerdictD Judgment/Directed Verdict/NOV
iii
Other
Remand to state court
Amount Sought by Plaintiff:
$
HECM foreclosure
Amount Sought by Defendant:
$
Void HECM mortgage
Awarded:
$--------
to
--
Injunctions:D
TRO
D Preliminary
o
PermanentD Granted
o
Denied
 
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!I
Yes
0
No
What
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!I
Yes
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,
provide
unknown
(a)
Case
Name(b) Citation
unknown
(c) Docket Number
if
unreported
unknown
(d) Court
or
Agency
unknown
(4) Will this appeal involve a conflict
of
law(a)
Within
the
Eleventh Circuit?
0
Yes
0
No(b) Among circuits?
I!I
Yes
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 assignment
of
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
themortgagor'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 matter 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
CERTIFY
THAT I
SERVED
THISCIVIL
APPEAL
STATEMENT ON
THE
CLERK
OF THE
u.S.
COURT
OF APPEALS
FOR
THE ELEVENTH
CIRCUIT
AND
SERVED
A
COPY
ON
EACH
PARTY OR THEIR COUNSEL OF RECORD,
THIS
Neil
J.
Gillespie, PRO SE -NON-LAWYER
NAME
OF
COUNSEL
(Print)
2013
-=s...;;.,t
__
Please
ATTACH
portion
of
district court, tax court,
or
agency record described in 11th
Cir.
R.
33-1(b): (a) judgments
and
orders appealed
fromor
sought
to
bereviewed;(b)anysupportingopinion,findings
of
fact,
and
conclusions
of
law
filed
by
the
court
or
theagency, board,commission,
or
officer;
(c)
anyreport
and
recommendation adoptedbyan order; (d)findings andconclusions
of
an administrative
law
judgewhen appealing a court order reviewing an agency determination; (e) any agency docket sheet
or
record index.
 
Civil Appeal Statement - additional pagesEleventh Circuit Docket Number: 13-11585-BAppeal Number 13-11585-BReverse Mortgage Solutions, Inc. v. Neil J. Gillespie, et al.District Court Docket No: 5:13-cv-00058-oc-WTH-PRLThis 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 Alzheimer’s 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 CaliforniaThere 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 America’s 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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