JAMES L. DAVIS, WILLIAM H. SCHARRER, AND WILLIAM H. SCHARRER, JR., APPELLANTS,
v.
AMERIFIRST BANK, A FEDERAL SAVINGS BANK, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court affirmed foreclosure of mortgaged property, holding that homestead status did not bar foreclosure because the property was never homestead, the mortgagor cannot assert homestead to defeat foreclosure, the property lost homestead status upon divorce, and homestead rights were waived by the mortgagor's wife.
A mortgagor cannot use homestead status to defeat foreclosure, and homestead protection was unavailable here because the property was never homestead, the mortgagor lacked standing to assert it, divorce terminated any homestead status, and the mortgagor's wife validly waived homestead rights.
[1] A mortgagor cannot assert homestead exemption to defeat foreclosure of property pledged as security for a mortgage.
[2] Homestead status is lost upon divorce of the property owner and mortgagor.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligenceDavis and Scharrer executed a note and mortgage on real property to secure a loan from AmeriFirst Bank. The mortgagors claimed homestead status to pre…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Homestead Status cases and more on FLexlaw
PER CURIAM.
We find no error in the trial court holding that the real property, which was pledged to secure a first mortgage, at no time pertinent, had the status of homestead upon any of the following bases: 1) the property was not homestead in the first instance. Hussa v. Hussa, 65 So. 2d 759 (Fla.1953); Johns v. Bowden, 68 Fla. 32, 66 So. 155 (1914); McGregor v. Kellum, 50 Fla. 581, 39 So. 697 (1905); Murphy v. Farquhar, 39 Fla. 350, 22 So. 681 (1897); 29 Fla.Jur.2d, Homesteads § 27 (p. 290); 2) Even if a homestead, the maker of the note and mortgage may not urge such status to defeat a foreclosure. Hillsborough Investment Co. v. Wilcox, 152 Fla. 889, 13 So. 2d 448 (1943); Patterson v. Taylor, 15 Fla. 336 (1875); 29 Fla.Jur.2d, Homesteads § 40 (p. 302); 3) Even if it was homestead in the first instance, it lost this status when the maker of the note and mortgage, and the owner of the property, became divorced. Miller v. West Palm Beach Atlantic National Bank, 142 Fla. 22, 194 So. 230 (1943); United States v. Boyette, 413 So. 2d 1250 (Fla. 1st DCA 1982); 29 Fla.Jur.2d, Homesteads § 76 (p. 331); and 4) Even if the property did have homestead status, same was duly waived by the execution of a waiver by the maker’s wife, with all the formalities of a deed, which was attached to the mortgage. See and compare MacGregor v. MacGregor, 323 So. 2d 35 (Fla. 4th DCA 1975).
Therefore, for the reasons stated, the final judgment of foreclosure under review, be and the same is hereby affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Myers v. Theodore Lehrer, M.D., 671 So. 2d 864 (Fla. 4th DCA 1996)…ant’s promise enforceable by the wife in that proceeding. Once appellant’s promise acquired such legal significance it was akin to those [*867] written, informed homestead waivers which have been approved by the courts. See Davis v. Amerifirst Bank, 578 So. 2d 318, 319 (Fla. 3d DCA 1991), rev. den. 584 So. 2d 997 (Fla.1991); City Nat’l Bank v. Tescher, 578 So. 2d at 703; § 732.702(1), Fla.Stat. (1995); cf. Monks v. Smith, 609 So. 2d 740, 743 (Fla. 1st DCA 1992) (where the court held no homestead waiver, findi…
Authorities Cited
- Johns v. Bowden, 68 Fla. 32 (Fla. 1914)
- IDE v. City OF ST. Cloud, 152 Fla. 837 (Fla. 1943)
- Hillsborough Inv. Co. v. Wilcox, 152 Fla. 889 (Fla. 1943)
- Murphy v. Farquhar, 39 Fla. 350 (Fla. 1897)
- Herbert v. Miller v. W. Palm Beach Atl. Nat'l Bank, 142 Fla. 22 (Fla. 1940)
- Tootie B. McGregor v. Kellum, 50 Fla. 581 (Fla. 1905)
- Patterson v. Taylor, 15 Fla. 336 (Fla. 1875)
- Hussa v. Hussa, 65 So. 2d 759 (Fla. 1953)
- Rowena MacGREGOR and Lester W. Bennett v. MacGREGOR, 323 So. 2d 35 (Fla. 4th DCA 1975)
- United States v. Boyette, 413 So. 2d 1250 (Fla. 1st DCA 1982)