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Plaintiff
Defendants.
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FORECLOSURE SALE
counsel and hereby files this his Verified Motion to Vacate Final Judgment of Foreclosure and
Cancel the September 19, 2017 Foreclosure Sale and in support thereof states as follows:
1. On July 18) 2017, a Non-Jury Trial was conducted in the above-noted matter, and
a Final Judgment of Foreclosure was entered and a foreclosure sale was scheduled for Septembe~
19,2017.
2. Florida Rule of Civil Procedme 1.540 affords relief from a Final Judgnlent due to
the following: (1) ~{istake, inadvertence~ swprise, or excusable neglect~ (2) newly discovered
evidence which by due diligence could not have been discovered in time to move for a new trial
or other misconduct of an adverse party; (4) that the judgment or decree is void~ or (5) that the
judgment or decree has been satisfied, released) or discharged, or a pnor judgn1ent or decree
It
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upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that
3. Because the Plaintiff, Reverse Mortgage Solutions, Inc.) failed to establish the
occurrence of a condition precedent to its right to foreclose on the subject property, the Final
4. On June 5) 2008) Mrs. Penelope Gillespie signed and executed an adjustable rate
"reverse mortgage." Mrs. Gillespie's two sons, Mark J. Gillespie and Neil Gillespie also signed
receive monthly payments from a lender based upon the homeowners' equity in their principal
residence. Instead of the more conventional mortgage arrangement - where the borrower
receives a lump sum from a lender, and then repays the lender over time with monthly payments
- generally, in a reverse mortgage arrangement, the lender makes monthly payments to the
elderly homeowners) and the homeowners' obligation to repay the lender ripens only upon the
homeowners' death or when the homeowners move from their home. See.. e.g., Bennett v.
5. Since Mark J. Gillespie and Neil Gillespie are co-borrowers under the mortgage)
the Final Judgment of Foreclosure entered on July 18, 2017 should never have been entered, and
is de facto a void judgment, because under the ter.ms of the reverse mortgage, foreclosure is
prohibited until either Mark J. Gillespie or Neil Gillespie dies, or until one ofthern no longer
6. As of the filing of this Motion, both Mark J. Gillespie and Neil Gillespie are both
very much alive, and Neil Gillespie still maintains the subject property as his principal residence.
.. ~_ _w,. , .........."'._..._ ._ _ _
7. It is axiomatic that in a mortgage foreclosure action a plaintiff must plead and
prove the occurrence of all conditions precedent. 5'ee Konsulian v. Busey Bank, N.A~., 61 So. 3d
mortgages insured by I-IUD~ the subject mortgage contains plain language expressly providing as
follows:
The Secretary may not insure a honle equity conversion mortgage under this
section Wlless such mortgage provides that the homeowner's obligation to
satisfy the loan obligation is deferred until the homeowner's death, the sale of
the home, or the OCCUJTenCe of other events specified in regulations of the
Secretary. For purposes of this subsection, the term "homeowner" includes
the spouse of a conditioning the lender's acceleration and foreclosure rights
n
on the death of any "Borrower whose principal residence is the property
encumbered by the Inortgage.
9. Because Mark J. Gillespie and Neil Gillespie) the co-borrowers) are both still
alive, and because Mrs. Penelope Gillespie's death is the sole ground alleged for Reverse
Mortgage Solutions' acceleration and foreclosure, then a condition precedent to the lender's nght
to foreclose has not occurred, thereby precl'uding the lender~s foreclosure action at the outset.
10. A judgment is void, as a matter of law, where the Cou.rt rendering the judgment
lacked jurisdiction, or where a party lacked proper notice that the other party applied to the COUIt
for a Final Judgment. Windell v. Dorr, 497 SO.2d 940 (Fla. 1st DCA 1986).
attempt at acceleration and foreclosure had not occurred, the Plaintiff had no standing to even
bring this action, thus rendering the July 18) 2017 Final Judgment of Foreclosure void.
12. Furthermore, Rule 1.540 (b) (4) specifically provides for relief from a void Final
Judgment. On a proper motion, a trial court must set aside a void judgment, and Florida Courts
have routinely held that a trial court has no discretion and is obligated to vacate such ajudgment.
See Horton v. Rodriguez Espaillat Y Asocildos, 926 So.2d. 436 (Fla. 3rd DCA 2006).
13. The Defendant, MARK J. GILLESPIE, hereby requests that this Honorable
Court vacate the Final Judgment of Foreclosu.re entered on July 18, 2017 and enter an Order
WHEREFORE, the Defendant, respectfully requests that the Court enter its Order
granting the instant Motion, vacating the Final Judgment of Foreclosure and directing the Clerk
to cancel the September 19, 2017 foreclosure sale in this matter and providing such other and
VERIFICATION
I decla.e nnde." penalty of perjury that I have read the foregoing Vetified Motion
and that the fa~ts alleged are true and accurate to the best of my knowledge and
belief.
Sworn and subscribed before me on, August.1O-, 2017 by Mark J. Gillespie) who--UL)..
is .personally known to me \;)leA produced If!YPs" \x'\\JeQ \~~s
identification and who took an oath.
. 1Df111t1U1t
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and conect copy of this docunlent is being
served on the date of the filing of this document via the e-portaJ to all parties of record.