Edwards v. Reverse Mortg. Solutions, Inc., 3D14–2631.
| Decision Date | 02 March 2016 |
| Docket Number | No. 3D14–2631.,3D14–2631. |
| Citation | 187 So.3d 895 |
| Parties | Johnnie Mae EDWARDS, Appellant, v. REVERSE MORTGAGE SOLUTIONS, INC., Appellee. |
| Court | Florida District Court of Appeals |
Legal Services of Greater Miami, Inc., and Jacqueline C. Ledón, for appellant.
McCalla Raymer and Toby Foor–Pessin, Orlando, for appellee.
Before, SALTER, FERNANDEZ and LOGUE, JJ.
FERNANDEZ
, J.
The defendant, Johnnie Mae Edwards, appeals the entry of a final judgment of foreclosure entered in favor of appellee, Reverse Mortgage Solutions, Inc., in this reverse residential mortgage foreclosure case. Following this Court's recent opinion in Smith v. Reverse Mortgage Solutions, Inc., etc., ––– So.3d ––––, 2015 WL 4257632 (Fla. 3d DCA 2015)
(), we reverse because Reverse Mortgage failed to establish a condition precedent to its right to foreclose.
On November 21, 2006, Willie A. Edwards obtained a reverse mortgage from Reverse Mortgage using the equity in his marital home (a home equity conversion mortgage). Mr. Edwards signed and executed a promissory note for the debt. The note defines "borrower" as the person who signs at the end of the note. Mr. Edwards, joined by his wife, Johnnie Mae Edwards, secured the debt by signing and executing a mortgage. Mrs. Edwards appears as a borrower on the mortgage's signature block. However, she was not mentioned in the note, and her signature was not on the note.
On April 10, 2008, Mr. Edwards passed away. As per the terms of the mortgage's acceleration provision in paragraph 9(a)(i):
Grounds for Acceleration of Debt. Due and Payable. Lender may require immediate payment in full of all sums secured by this Security Instrument if: A borrower dies and the Property is not the principal residence of at least one surviving Borrower; ...
Accordingly, Reverse Mortgage Solutions, Inc. accelerated the debt. Mrs. Edwards failed to pay the alleged sum due under the note and defaulted. On November 8, 2013, Reverse Mortgage filed a one-count foreclosure action. Initially, Mrs. Edwards was defaulted for her failure to appear and for failing to file any responsive pleadings. However, she eventually appeared pro se. A non-jury trial was held, at which point she had obtained counsel to represent her.
At trial, due to having been defaulted, Mrs. Edwards was barred from testifying and from entering affirmative defenses. Her counsel stated that she no longer had title of the home, having quitclaimed it to her husband prior to his application for the reverse mortgage. This assertion was not objected to. Mrs. Edwards contended that despite the default, Reverse Mortgage was still required to prove its case. She maintained that Reverse Mortgage needed to prove she defaulted under the note and mortgage by failing to pay the payment due on April 10, 2008 and all subsequent payments. The trial court held that Reverse Mortgage was entitled to foreclosure because Mr. Edwards was the only borrower under the note, and therefore, the only borrower for the purposes of the mortgage's acceleration provision. Accordingly, as Mr. Edwards was now deceased, the trial court entered final judgement in favor of Reverse Mortgage. Mrs. Edwards then filed this appeal.
We believe the issue before us today is the exact same issue that was recently addressed by this Court in Smith v. Reverse Mortgage, Solutions, Inc., etc., ––– So.3d ––––, 2015 WL 4257632
. In Smith, we found that "based on the plain and unambiguous language of the mortgage," both the deceased husband and his wife were treated as "borrowers" under the mortgage, and each borrower was "protected from the foreclosure of the mortgage until both borrowers died." Id. at ––––, at *3 (emphasis added). Thus, we held in Smith that the wife who survived her spouse was a co-borrower and that her death was a condition precedent to Reverse Mortgage Solutions' ability to foreclose. Id. In Smith, as in the case before us, the surviving spouse was a borrower under the mortgage, but was not designated a borrower under the note.
As in Smith, we hold that the trial court's final judgment in the case before us should be reversed because Reverse Mortgage has not met the condition precedent required before it is able to foreclose on Mrs. Edward's...
To continue reading
Request your trial
-
OneWest Bank, FSB v. Palmero
...foreclose and the defendants were entitled to entry of judgment in their favor in this action. See also Edwards v. Reverse Mortg. Sols., Inc., 187 So.3d 895, 896-97 (Fla. 3d DCA 2016) (citing Smith, reversing final judgment of foreclosure, and remanding for entry of final judgment in favor ......
-
D'Alessio v. CIT Bank, N.A. (In re D'Alessio)
...the Debtor, Smith v. Reverse Mortgage Solutions, Inc. , 200 So.3d 221 (Fla. Dist. Ct. App. 2016), and Edwards v. Reverse Mortgage Solutions, Inc. , 187 So.3d 895 (Fla. Dist. Ct. App. 2016), are easily distinguishable. In both Smith and Edwards , the plaintiffs had signed reverse mortgages a......
-
Reverse Mortg. Solutions, Inc. v. Nunez
...support her position – Smith v. Reverse Mortgage Solutions, Inc. , 200 So.3d 221 (Fla. 3d DCA 2016) and Edwards v. Reverse Mortgage Solutions, Inc. , 187 So.3d 895 (Fla. 3d DCA 2016).On January 29, 2018, RMS filed another Memorandum of Law to support its objection to Debtor's plan. RMS argu......
-
WVMF Funding v. Palmero
...prior decisions in Smith v. Reverse Mortgage Solutions, Inc. , 200 So. 3d 221 (Fla. 3d DCA 2016), and Edwards v. Reverse Mortgage Solutions, Inc. , 187 So. 3d 895 (Fla. 3d DCA 2016), where the district court had "considered reverse mortgages identical to the [Palmeros’] reverse mortgage and......