Edwards v. Reverse Mortgage Solutions, Inc.

Third District Court of Appeal
State of Florida
Opinion filed March 2, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D14-2631
Lower Tribunal No. 13-35088
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Johnnie Mae Edwards,
Appellant,
vs.
Reverse Mortgage Solutions, Inc.,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Jon I. Gordon,
Senior Judge.
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., 2015 WL 4257632(motions for rehearing and rehearing en banc pending), 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,
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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., 2015 WL 4257632. In Smith, we found that “based on the plain and
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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 *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 property. Here,
Mrs. Edwards is a co-borrower, and her death is a condition precedent to Reverse
Mortgage’s ability to foreclose on the property. Smith at *5.
We agree with the reasoning in Smith that this holding is consistent with
Florida’s Homestead provisions, Article X, § 4(c), Florida Constitution, as well as
the purpose of federal laws related to reverse mortgages enacted to prevent the
displacement of elderly homeowners. See Smith at *4; 12 U.S.C. § 1715z-20(j).
This provision provides, and as we stated in Smith, “For purposes of this
subsection, the term ‘homeowner’ includes the spouse of a homeowner.” See
Smith at *11; 12 U.S.C. § 1715z-20(j).
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We adhere to Smith and agree that “it would be difficult, if not impossible,
for us to construe [Mrs. Edwards] as anything other than a ‘Borrower’”.
Accordingly, Mrs. Edwards is a “borrower” for purposes of Paragraph 9 of the
mortgage’s acceleration provision. Smith at *5. It then follows that pursuant to the
acceleration clause, Reverse Mortgage had to establish that either Mrs. Edwards
died or that as of the date of the trial in the lower court, the property was no longer
Mrs. Edward’s residence. The record reflects that Mrs. Edwards is still alive, and
the property is still her residence. Accordingly, Reverse Mortgage may not
foreclose the mortgage, pursuant to the 9(a)(i) acceleration provision, against Mrs.
Edwards, who is a surviving borrower under the mortgage, but not a borrower
under the note.
We reverse the trial court’s Final Judgment of Foreclosure and remand the
case to the trial court to enter final judgment in favor of Mrs. Edwards.
Reversed and remanded with instructions.
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