CitiMortgage, Inc. v. Turner

• Decision Date: 04 August 2015
• Docket Number: No. 1D14–1137.,1D14–1137.
• Citation: 172 So.3d 502
• Parties: CITIMORTGAGE, INC., Successor by Merger to ABN Amro Mortgage Group, Inc., Appellant, v. Jeffrey Lynn TURNER a/k/a Jeffrey L. Turner; Linda Ann Steakly Turner a/k/a Linda A. Turner; J.L. Loper a/k/a Jerry L. Loper; and Parasol West Homeowner's Association, Inc., Appellees.
• Court: Florida District Court of Appeals

172 So.3d 502

CITIMORTGAGE, INC., Successor by Merger to ABN Amro Mortgage Group, Inc., Appellant

v.Jeffrey Lynn TURNER a/k/a Jeffrey L. Turner; Linda Ann Steakly Turner a/k/a Linda A. Turner; J.L. Loper a/k/a Jerry L. Loper; and Parasol West Homeowner's Association, Inc., Appellees.

No. 1D14–1137.

District Court of Appeal of Florida, First District.

Aug. 4, 2015.

Rehearing Denied Sept. 4, 2015.

Wendy J. Stein, Keller Landsberg P.A., and Jonathan Blackmore, Phelan Hallinan, P.L.C., Fort Lauderdale, for Appellant.

Diane M. Longoria of Quintairos, Prieto, Wood & Boyer, P.A., Pensacola, for Appellee J.L. Loper.

Opinion

WETHERELL, J.

CitiMortgage, Inc. (the bank) appeals the final judgment in favor of Appellees J.L. Loper, Jeffrey Turner, and Linda Turner in this mortgage foreclosure case. The bank argues that the trial court erred in determining that its mortgage did not encumber Loper's interest in the property that is the subject of the foreclosure action. We agree. Accordingly, we reverse the final judgment in part and remand for further proceedings.

In April 2007, the Turners acquired an undivided 1/2 interest in residential property on Gulfview Lane in Pensacola/Perdido Key from an entity controlled by Loper. Thereafter, the Turners executed a promissory note and mortgage in favor of the bank's predecessor by merger, ABN AMRO Mortgage Group, Inc. (ABN). The mortgage purported to give ABN a security interest in the entire Gulfview Lane property, not just the Turners' undivided 1/2 interest in the property. Loper was identified as a “Borrower” in the mortgage, and although he did not sign the promissory note executed by the Turners, he did sign the mortgage with the notation “Limited Purpose Execution.” The mortgage does not contain a specific explanation of this notation, but it does include the following provision regarding “co-signers”:

13. Joint and Several Liability; Co-signers; Successors and Assigns Bound. Borrower covenants and agrees that Borrower's obligations and liability shall be joint and several. However, any Borrower who co-signs this Security Instrument but does not execute this Note (a “co-signer”): (a) is co-signing this Security Instrument only to mortgage, grant and convey the co-signer's interest in the Property under the terms of this Security Instrument; (b) is not personally obligated to pay the sums secured by this Security Instrument; and (c) agrees that Lender and any other Borrower can agree to extend, modify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note without the co-signer's consent.

In March 2010, the bank filed a complaint to foreclose the mortgage because the Turners defaulted on their obligation to repay the promissory note. The bank subsequently amended the complaint to seek cancellation of a preexisting “private mortgage” between the Turners and Loper.¹ Loper filed an answer asserting, among other things, that his 1/2 interest in the property could not be foreclosed because his signature on the mortgage was a “limited purpose execution the sole purpose of which was to enable [the Turners] to encumber their undivided 1/2 interest in the Subject Property.”

In February 2014, after a non-jury trial,² the trial court entered a final judgment in favor of Loper and the Turners. With respect to the foreclosure count, the trial court ruled that the bank “failed to establish that Defendant Loper's limited execution of the mortgage operated to encumber Defendant Loper's undivided 1/2 interest in the subject property.” The bank filed a timely appeal seeking review of this ruling.³

We review the trial court's interpretation of the mortgage under the de novo standard of review. See Rose v. Steigleman, 32 So.3d 644, 645 (Fla. 1st DCA 2010) (“A trial court's interpretation of a contract is a matter of law and is thus subject to de novo review.”). “The cardinal rule of contractual construction is that when the language of a contract is clear and unambiguous, the contract must be interpreted and enforced in accordance with its plain meaning.” Columbia Bank v. Columbia Developers, LLC, 127 So.3d 670, 673 (Fla. 1st DCA 2013). A contract is ambiguous when it is susceptible to more than one reasonable interpretation, but “where one interpretation of a contract would be absurd and another would be consistent with reason and probability, the contract should be interpreted in the rational manner.” BKD Twenty–One Mgmt. Co., Inc. v. Delsordo, 127 So.3d 527, 530 (Fla. 4th DCA 2012).

Here, the language of the mortgage unambiguously provides that it covers the entire Gulfview Lane property, including the 1/2 interest in the property held by Loper. First, the property subject to the mortgage is described by its full legal description and street address and nothing in the description states that the bank's security interest in the property excludes the 1/2 interest held by Loper or that it is limited to only the 1/2 interest held by the Turners. Second, Loper is...