LILLIAN L. VERA, APPELLANT,
v.
WELLS FARGO BANK, N.A., AS SUCCESSOR BY MERGER TO WACHOVIA BANK N.A. F/K/A FIRST NATIONAL BANK, APPELLEE

Fla. 4th DCA | 2015-11-04
No. 4D14-2672
STEVENSON and CONNER, JJ„ concur.
178 So. 3d 517 Florida District Court of Appeal, Fourth District (2015) Caution
Cited by 8 cases

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.

Synopsis

Lillian Vera appeals a summary judgment of foreclosure, arguing that material facts existed regarding whether the property was her protected homestead and whether she waived homestead rights. The court reversed, finding that genuine issues of material fact existed as to whether Vera established the property as her homestead prior to the bank's mortgage lien.


Holding

Summary judgment was improper because genuine issues of material fact existed as to whether Homeowner established the subject property as her homestead prior to the Bank's mortgage. The court reversed and remanded because, viewing evidence in the light most favorable to Homeowner, questions remained about whether she and her husband owned and occupied the property as their permanent residence before the mortgage was executed.


Headnotes

[1] Summary judgment is improper if there is a genuine issue of material fact or if different inferences can reasonably be drawn from the facts.

[2] A party claiming homestead protection must establish ownership of the property and continuous residency prior to the execution of a mortgage.

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Key Quotes

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”

Establishes the legal standard for summary judgment that requires the moving party to conclusively show no material fact exists

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Facts & Procedural History

In November 1999, Georgina Vera (Homeowner's mother-in-law) and Rogelio Vera (Homeowner's husband) executed a note and mortgage to Wells Fargo Bank, N…

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Opinion of the Court
DAMOORGIAN, J.

DAMOORGIAN, J.

Lillian Vera (“Homeowner”) appeals, a final summary judgment of foreclosure en*518tered in favor of Wells Fargo Bank, N.A. (“the Bank”). Homeowner argues that she raised , disputed issues of material fact as to whether the subject property was her protected homestead property and whether she waived her homestead rights, Accordingly,. she maintains that the trial court erred in granting final summary judgment. We agree and reverse.

The following facts established by the parties’ pleadings and affidavits are relevant to this appeal. The Bank initiated the underlying foreclosure action and listed the Homeowner, amongst many others, as a defendant. The complaint alleged that in November of 1999, Georgina Vera .(Homeowner’s then . mother-in-law) and Rogelio Vera (Homeowner’s then husband) executed- and. delivered the subject note to the Bank. The complaint further alleged that the property “was then owned by and in the possession of’ both Georgina and Rogelio Vera. With regard to Homeowner’s potential interest in the. property, the complaint alleged that she “may have or appear to have some right, title, interest or claim in and to the mortgaged property by virtue of a Quit Glaim Deed ... [but that] [s]aid interest, if any, is subject and inferior to the lien of Plaintiffs mortgage.”

in her responsive pleading, Homeowner admitted that the subject property was then owned by Georgina and Rogelio Vera and denied that her interest in the property was inferior to the Bank’s mortgage. As an affirmative defense, Homeowner asserted that the subject property was her protected homestead and was thus exempt from forced sale. Specifically, she alleged that: (1) Homeowner and Rogelio Vera were married in 1998; (2) Homeowner and Rogelio Vera began permanently living in the subject property in the months prior to November 15, 1999; (3) the Bank never obtained Homeowner’s signature on the subject mortgage; (4) Homeowner continues to reside in the subject property, and intends to remain therein; and (5) on November 13, 2002, Georgina Vera deeded the property to Homeowner and Rogelio Vera.

The Bank subsequently moved for final summary judgment. As to Homeowner’s homestead defense, the Bank argued that the defense was meritless because Homeowner failed to establish the property as her homestead prior to the execution of its mortgage and further failed to live on the property continuously. In support of its argument, the Bank filed • the following documentary - evidence:

•Homeowner’s deposition transcript in which she admitted leaving the subject property ‘sometime in 2011 for an unspecified'amount of time.
• The property appraisal report showing that the subject property was vacant as of July 27,1999.'
• Homeowner’s tax returns for 1998 and 1999 which listed an address different than the subject property.
• The Palm Beach County tax collector’s ad valorem tax assessment, showing that no homestead exemption had been taken on the subject property for the year 1999.

In response, Homeowner filed an affidavit in opposition to the Bank’s motion for summary judgment, reiterating the allegations previously made in her answer and affirmative defense.

The record indicates that the court held a hearing- on the Bank’s motion for final summary judgment. However, the record does not contain a transcript. The court ultimately granted the Bank’s motion and entered final summary judgment for the Bank,

On appeal, Homeowner argues that summary judgment was improper because material issues of fact existed as to *519whether she established the subject property as her homestead prior to the creation of the Bank’s lien. Specifically, Homeowner maintains that if she in fact established the property as her homestead, her signature was required on the mortgage in order to effectuate the Bank’s security interest in the homestead property.1 The Bank counters that Homeowner never alleged or established that she and/or her husband actually owned the property, as is required to, claim homestead protection, prior to the execution of the subject mortgage.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “Tf the record re&ects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.’ ” Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010) (quoting Bender v. CareGivers of Am., Inc., 42-So.3d 893, 894 (Fla. 4th DCA 2010)). The burden is on the moving party to conclusively show that no genuine issue of material'fact exists. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2000).

The material facts relevant to a determination of entitlement to a homestead exemption in the present case are: (1) whether Homeowner or her husband' owned the subject property prior to the execution of the subject mortgage; (2) whether Homeowner and her husband were married prior to the execution of the subject mortgage; and (8) whether Homeowner and her husband established and maintained the subject property .as their permanent residence prior to the subject mortgage. See Art. X, § 4(a), Fla. Const.; Aronson v. Aronson, 81 So.3d 515, 520 n. 2 (Fla. 8d DCA 2012).

While the Bank maintains that the homestead defense must fail because Homeowner never speeifíeally established that she,.or her husband actually owned the property prior to the execution and delivery of the subject note and mortgage, the following paragraph in the Bank’s complaint supports Homeowner’s assertion that her husband owned the property at the time the mortgage was executed:

¶¾6 Note was secured by a Mortgage dated November 15, 1999, which was executed by GEORGINA VERA A/K/A/ GEORGIANA VERA AND ROGELIO VERA A/K/A ROGEEIO VERA. The Mortgage was recorded on December 8, 1999 Official Records Book 11493, Page 1119, of the Public Records of Palm Beach' Gounty, Florida, and mortgaged the land, which land was then owned by and in the possession of GEORGINA VERA A/K/A GEORGIANA VERA AND ROGELIO VERA A/K/A RO-GEEIO VERA.

Homeowner, in ten, admitted these allegations. She further generally alleged that in the months prior to November 15, 1999, she and her husband “moved into their new home and began to permanently reside therein as their homestead.” Admittedly, Homeowner’s, evidence does not *520specifically establish the date her husband took an ownership interest in the property. However, viewing the evidence in the light most favorable to Homeowner, we are compelled to conclude that a genuine issue' of material fact exists as to whether the Homeowner established the subject property as her homestead prior to the Bank’s mortgage. See McCabe v. Fla. Power and Light Co., 68 So.3d 995, 997 (Fla. 4th DCA 2011).

Accordingly, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

STEVENSON and CONNER, JJ„ concur.


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Citator

Cited By

  • Crawford v. Fed. Nat'l Mortg. Ass'n, 266 So. 3d 1274 (Fla. 5th DCA 2019)
  • Caryn Hall Yost-Rudge v. A to Z Props., Inc., 263 So. 3d 95 (Fla. 4th DCA 2019)
    …residence of the owner or the owner’s family.” Fla. Const., art. X, § 4(a)(1). As a result, the married owner of a homestead property may not alienate the property without joinder or consent of his or her spouse. Vera v. Wells Fargo Bank, N.A., 178 So. 3d 517, 519 n.1 (Fla. 4th DCA 2015). The protections of homestead are limited to the residence of the owner and generally require the owner’s occupancy of the home with the intent to remain there. Law v. Law, 738 So. 2d 522, 524 (Fla. 4th DCA 1999).…
  • …straint against the devise. 2 Accordingly, we reverse the final judgment in Fannie Mae’s favor and remand for further proceedings consistent with this opinion. 2 Contrary to Fannie Mae’s contention, we find Vera v. Wells Fargo Bank, N.A., 178 So. 3d 517 (Fla. 4th DCA 2015), distinguishable, as the issue in that case was whether the subject property was homestead property of a married couple in an intact marriage at the time of the execution of the mortgage. 1…

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