final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 10-3055 Abby Cynamon, Judge.
& Forman LLP and Joshua H. Threadcraft (Birmingham, AL),
Carrera & Amador, P.A. and Juan M. Carrera, for
EMAS, LOGUE and LUCK, JJ.
bank appeals the trial court's judgment for a surviving
spouse in this reverse mortgage foreclosure case. After the
borrower-husband passed away, and the bank sought to
foreclose for non-payment, the trial court concluded that the
surviving spouse was not a borrower under the loan but the
bank still could not foreclose because the federal reverse
mortgage statute prohibited foreclosure against a surviving
spouse living in the mortgaged residence. We agree the
surviving spouse was not a borrower but vacate the judgment
and reverse because the trial court improperly relied on the
statute that no one raised as a defense to the foreclosure
Background and Procedural History
September 2006, Roberto and Luisa Palmero spoke to a reverse
mortgage counselor for an hour and received "information
about the implications of and alternatives to a reverse
mortgage." In a session tailored to their unique
financial circumstances, the counselor spoke to the Palmeros
about the impact of the reverse mortgage on their estate and
heirs. After the counseling session, the Palmeros certified
that they had discussed the financial implications of, and
alternatives to, the reverse mortgage, and they understood
its advantages and disadvantages, the payment plan, and its
December 2006, the Palmeros mortgaged their home to Value
Financial Mortgage Services, Inc. (The reverse mortgage was
later assigned to OneWest Bank.) As part of the reverse
mortgage, the Palmeros executed these five documents (among
mortgage, the borrower was defined as "Roberto Palmero,
a married man reserving a life estate unto himself with the
ramainderman [sic] to Luisa Palmero, his wife, Idania
Palmero, a single woman and Rene Palmero, a single man."
In the signature block, it said, "BY SIGNING BELOW,
Borrower accepts and agrees to the terms contained in this
Security Instrument and in any rider(s) executed by Borrower
and recorded with it." Mr. and Mrs. Palmero signed as
the borrower under this sentence.
note defined borrower to mean "each person signing at
the end of this Note." Mr. Palmero was the only person
who signed at the end of the note as the borrower.
The loan application.
loan application, the property was said to be in Mr.
Palmero's name. Mr. Palmero was named as the borrower,
and he signed as the borrower. Even though there was a space
for a co-borrower, Mrs. Palmero was not listed as the
co-borrower and she did not sign the loan application.