Trevor Brown, Individually and as Personal Representative of the Estate of Leticia Brown v. Towd Point Mortgage Trust 2017-6, Etc.

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

TREVOR BROWN, individually and as personal representative of the

ESTATE OF LETICIA BROWN,

Appellant,

v.

TOWD POINT MORTGAGE TRUST 2017-6, U.S. BANK NATIONAL

ASSOCIATION, AS INDENTURE TRUSTEE, et al.,

Appellees.

No. 4D2024-2438

[October 22, 2025]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm

Beach County; G. Joseph Curley, Jr., Judge; L.T. Case No.

2023CA010028XX.

Nicole A. Milson of Milson Law, P.A., Miami, for appellant.

William L. Grimsley and Kimberly Held Israel of McGlinchey Stafford,

Jacksonville, and Joseph J. Huss and Salvatore H. Fasulo of KHL Law,

Fort Lauderdale, for appellee Towd Point Mortgage Trust 2017-6.

GROSS, J.

We reverse a summary final judgment of foreclosure because, on this

record, the Husband did not participate in any way in his spouse’s

execution of a mortgage on homestead property. As we explain below, this

result is compelled by Article X, Section 4(c) of the Florida Constitution.

Background Facts

Trevor Brown (“the Husband”), individually and as personal

representative of the Estate of Leticia Brown, appeals a final judgment of

foreclosure in favor of Towd Point Mortgage Trust 2017-6, U.S. Bank

National Association, as Indenture Trustee (“the Trust”).

The Husband was married to the deceased borrower, Leticia Brown

(“the Borrower”), from 1990 until her death on May 28, 2020.

In 1999, the Borrower executed a promissory note payable to the

original lender in the principal amount of $105,931.00, which was secured

by a purchase money mortgage encumbering the subject property. The

mortgage incorrectly described the Borrower as a “Single Person.” The

Borrower was the sole grantee on the warranty deed. Shortly after the

Borrower purchased the property, a satisfaction of mortgage was recorded

in the public records of Palm Beach County, reflecting that the sellers’

mortgage in the principal sum of $88,205.00 had been satisfied.

The Husband did not sign the note or mortgage. According to his

affidavit, he moved into the property with the Borrower in 1999, but he

was not present for the signing of any documents related to a note or

mortgage on the property.

The note contained a blank endorsement and was ultimately

transferred to the Trust in 2018.

Following the Borrower’s death in May 2020, the Husband tried to

contact the Trust’s loan servicer, Select Portfolio Servicing, Inc. (“SPS”),

regarding “the alleged mortgage on the subject property,” as he noticed

that SPS had sent mail to the Borrower. The Husband attested that he

had informed SPS of his wife’s death, but SPS refused to discuss the

mortgage account with him.

No payment was made for the monthly installment due on July 1, 2020,

nor were any payments made thereafter.

In September 2021, SPS sent a notice of default to the Borrower at the

property address via first-class mail. The default was not cured.

In September 2022, the Husband’s counsel sent a letter to SPS stating

that “this firm represents Trevor Brown, the husband of the deceased

Leticia Brown, and that we will be opening an estate shortly to properly

convey this homestead property.” The Husband’s counsel enclosed copies

of the Borrower’s death certificate and marriage certificate of the Husband

and the Borrower.

The Lawsuit and the Pleadings

In May 2023, the Trust filed a complaint to foreclose the mortgage on

the property and named various unknown parties as defendants.

The Trust ultimately filed its operative second amended complaint,

which named Trevor Brown, individually and as personal representative of

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the Estate of Leticia Brown, as a defendant. That complaint asserted three

counts: Count I (Foreclosure of Mortgage); Count II (Equitable Vendor’s

Lien); and Count III (Equitable Subrogation).

The Husband filed an answer and affirmative defenses. He denied the

Trust’s allegation that all conditions precedent had been performed or had

occurred and asserted three affirmative defenses: (1) lack of standing; (2)

the Trust “failed to provide proper notice of default to Defendants”; and (3)

the mortgage was provided to the Borrower without the consent of the

Borrower’s spouse on their homestead property.

The Trust’s Motion for Summary Judgment and Exhibits

The Trust moved for final summary judgment, arguing that it was

entitled to foreclose the mortgage because no triable issues existed as to

whether the Trust was entitled to enforce the note as the holder, whether

the Borrower had materially breached her obligations under the loan,

whether the Trust had accelerated the loan, and whether the amounts due

and owing under the loan were correct. Alternatively, the Trust sought

summary judgment on its counts for an equitable vendor’s lien and

equitable subrogation. Finally, the Trust argued that the Husband bore

the burden of proving his affirmative defenses, which the Trust asserted

were insufficient or refuted.

In support of its summary judgment motion, the Trust submitted the

affidavit of an employee of the loan servicer regarding standard mailing

and business practices and the balance due on the note and mortgage.

The Trust also submitted the note, the mortgage, the default letter, and

the payment history.

The Husband’s Opposition to the Summary Judgment.

The Husband’s response to the summary judgment motion argued,

among other things, that the mortgage was void because “only Mrs. Brown

signed the Note and Mortgage” and a “spouse may only alienate homestead

property if joined by the other spouse.” The Husband’s affidavit stated

that he was married to the Borrower from 1990 until her death in 2020

and that he moved into the property with the Borrower in 1999.

The Trust’s Reply

The Trust replied in support of the summary judgment motion, arguing

in relevant part that (1) no spousal joinder was required on the purchase

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money mortgage, and (2) the record was devoid of any evidence supporting

homestead protection for either the Borrower or the Husband.

The Final Judgment of Foreclosure

Following a hearing, the trial court entered a final judgment of

foreclosure. The trial court ruled that the Trust had established a prima

facie case for mortgage foreclosure and that no genuine dispute of material

fact existed. The court found that the Trust, as holder of the endorsed

note, had standing to foreclose. Additionally, the court observed that the

Trust’s evidence established the following: the Borrower defaulted on the

loan by failing to make the payment due on July 1, 2020; a default letter

was mailed to the Borrower in accordance with the terms of the mortgage;

and the amounts due and owing were established by the Trust’s affidavit

and business records.

Relevant to this appeal, the court applied section 708.08(1), Florida

Statutes (1999), to rule that the mortgage was valid. Section 708.08(1)

then provided, as it does today, that mortgages “executed by a married

woman without the joinder of her husband . . . are as valid and effective

as though the husband had joined.” Finally, the court ruled that,

pursuant to Article X, Section 4(a) of the Florida Constitution, the lien

created by the purchase money mortgage was “superior to that of any

homestead rights possessed” by the Husband. This appeal ensued.

Standard of Review

The standard of review for orders granting summary judgment is de

novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126,

130 (Fla. 2000).

Summary Judgment Standard

Florida’s summary judgment rule, which is to be applied in accordance

with the federal standard, states that summary judgment is appropriate

where “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fla. R. Civ. P. 1.510(a). A party

seeking summary judgment “always bears the initial responsibility” of

demonstrating “the absence of a genuine issue of material fact.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he inferences to be drawn

from the underlying facts . . . must be viewed in the light most favorable

to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986).

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Still, “[a] movant for summary judgment need not set forth evidence

when the nonmovant bears the burden of persuasion at trial.” In re

Amends. to Fla. R Civ. P. 1.510, 317 So. 3d 72, 75 (Fla. 2021). Thus, on a

plaintiff’s motion for summary judgment, the defendant bears the burden

of showing that an affirmative defense is applicable. G & G In-Between

Bridge Club Corp. v. Palm Plaza Assocs., 356 So. 3d 292, 299 (Fla. 2d DCA

2023). A genuine factual dispute exists “if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Stated another way, the

inquiry is “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party

must prevail as a matter of law.” Id. at 251–52. The “mere existence of a

scintilla of evidence” in support of the non-movant’s position is insufficient

to defeat summary judgment. Id. at 252.

Article X, Section 4(c) Controls Over Section 708.08(1) so

that the Mortgage Lien Was Not Effective on Homestead

Property

This case involves the interplay between Article X, Section 4(c) of the

Florida Constitution and section 708.08(1), Florida Statutes (1999).

Article X, Section 4(c) of the Florida Constitution states in relevant part

that “[t]he owner of homestead real estate, joined by the spouse if

married, may alienate the homestead by mortgage[.]” (Emphasis added).

“Florida courts have consistently interpreted this constitutional

provision as requiring spousal joinder in the execution of a mortgage on

homestead property in order for the mortgage to encumber the property

and be enforceable in foreclosure, even where only the signatory spouse is

an owner of record on the property’s deed.” Crawford v. Fed. Nat’l

Mortgage Ass’n, 266 So. 3d 1274, 1277 (Fla. 5th DCA 2019).

A 1985 amendment to the Florida Constitution revised the definition of

homestead from a residence owned by the “head of a family” to a residence

owned by a “natural person.” See Isaacs v. Fed. Nat’l Mortg. Ass’n, 373

So. 3d 1172, 1173–75 (Fla. 3d DCA 2022). Following the 1985

amendment, “the restrictions against alienation and devise found in

section (4)(c) apply to any ‘natural person’ owning property that otherwise

qualifies as homestead and, conversely, protect any spouse married to a

natural person owning a homestead.” Id. at 1175. Thus, Article X, Section

4(c) unambiguously requires a married owner of homestead property to

obtain their spouse’s joinder in the mortgage against the property. Id.

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A mortgage of homestead property is not void when signed by only one

spouse, but it is “ineffectual as a lien until such time as either the spouse

joins in the alienation or the property loses its homestead status.” Pitts v.

Pastore, 561 So. 2d 297, 301 (Fla. 2d DCA 1990). If a purchase money

mortgage lien is ineffective due to the nonjoinder of one spouse, the note

holder is entitled to an equitable vendor’s lien on the property. See Spikes

v. OneWest Bank FSB, 106 So. 3d 475, 478 (Fla. 4th DCA 2012).

A homestead protection enshrined in the Florida Constitution is the

exemption from forced sale by creditors under Article X, Section 4(a). This

provision states in relevant part that a homestead is “exempt from forced

sale under process of any court, and no judgment, decree or execution

shall be a lien thereon, except for . . . obligations contracted for the

purchase, improvement or repair thereof . . . .” Art. X, § 4(a), Fla. Const.

(emphasis added).

“The determination that a mortgage is a purchase money mortgage is

important because purchase money mortgages take priority over all prior

claims or liens that attach to the property through the mortgagor.”

BancFlorida v. Hayward, 689 So. 2d 1052, 1054 (Fla. 1997). Thus, “a

purchase-money mortgage, made simultaneously with the conveyance to

the mortgagor, takes precedence over any lien arising through the

mortgagor, even though the latter be prior in point of time.” Id. (cleaned

up). In short, purchase money mortgages are “recognized as being senior

to the claims of dower and homestead.” Assocs. Disc. Corp. v. Gomes, 338

So. 2d 552, 553 (Fla. 3d DCA 1976). A mortgage qualifies as a purchase

money mortgage even when executed in favor of a third party other than

the vendor, as long as it was given to finance part of the property’s

purchase price. Sarmiento v. Stockton, Whatley, Davin & Co., 399 So. 2d

1057, 1058 (Fla. 3d DCA 1981).

Here, the trial court erred by entering a final judgment of mortgage

foreclosure because Article X, Section 4(c) did not allow the Borrower to

alienate homestead property by mortgage without her spouse’s joinder.

While the mortgage was not void, it was ineffective as a lien and could not

support foreclosure until either the Husband joined the mortgage or the

property lost its homestead status. At a minimum, the Husband’s

evidence created a genuine dispute of fact as to whether the Borrower had

improperly alienated homestead property by mortgage without the

Husband’s joinder.

Viewed in the light most favorable to the Husband, the evidence showed

that the mortgage lien was ineffective because the Husband did not join in

the execution of the mortgage on his wife’s homestead property. As the

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Third District explained in Isaacs, “under the clear and unambiguous

language of section (4), the wife was required to obtain the husband’s

joinder in the mortgage against the property under section (4)(c) because

she was a married owner of property which constituted homestead within

the meaning of section (4)(a) at the time of the mortgage.” 373 So. 3d at

1175. 1 Therefore, the trial court erred in finding that the Trust was

entitled to foreclose on the mortgage of homestead property where the

Borrower’s spouse did not sign the mortgage.

The trial court’s reliance upon section 708.08(1) was misplaced.

Section 708.08 was last amended in 1983. The latest version of section

708.08 thus predates the 1985 amendments to Article X, Section 4 of the

Florida Constitution.

Section 708.08(1), Florida Statutes (1999), governs married women’s

property rights and states in part that “[a]ll conveyances, contracts,

transfers, or mortgages of real property or any interest in it executed by a

married woman without the joinder of her husband . . . are as valid and

effective as though the husband had joined.”

Significantly, a constitutional provision must prevail over any

conflicting language in a statute. See, e.g., State v. Washington, 403 So.

3d 465, 471 (Fla. 6th DCA 2025). Section 708.08(1) cannot

constitutionally be applied to homestead property because this would

conflict with Article X, Section 4(c)’s requirement of spousal joinder for

alienation of homestead property. Thus, Article X, Section 4(c) prevails

over the conflicting language in section 708.08(1), which must be

construed to apply only to non-homestead property.

The Trust has misplaced its reliance on Smith v. Martin, 186 So. 2d 16,

18 (Fla. 1966), to argue the interplay between Article X, Section 4(c) and

section 708.08(1). There, the Florida Supreme Court affirmed the validity

of an older version of section 708.08, which prohibited a married woman

from encumbering her real property without the joinder of her husband.

See § 708.08, Fla. Stat. (1966) (stating that “no deed, mortgage or other

1 We have held an inadvertent failure to obtain a wife’s signature on a mortgage

did not render a mortgage void where the wife attended the loan closing, knew

“the proceeds of the mortgage were being used to pay for the property, and would

have signed the mortgage if requested to do so.” Countrywide Home Loans, Inc.

v. Kim, 898 So. 2d 250, 250–51 (Fla. 4th DCA 2005). Because the Husband

denied being present for the signing of any loan documents, the reasoning of

Kim—permitting a foreclosure action where a spouse inadvertently failed to sign

the mortgage—would not apply here.

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instrument conveying or encumbering real property owned by a married

woman shall be valid without the joinder of her husband”). The mortgage

in Smith was invalid for lack of spousal joinder, but the Florida Supreme

Court ruled that the property was nonetheless subject to an equitable lien.

186 So. 2d at 17–18. In short, Smith does not address the interplay

between the current versions of the constitutional provision and the

statute.

The Trust argues that its interest in the property is superior to the

Husband’s homestead rights because the mortgage is a purchase money

mortgage. But this argument conflates two distinct constitutional

homestead provisions. It is true that a homestead’s exemption from forced

sale under Article X, Section 4(a) does not apply to the holder of a purchase

money mortgage. But that is beside the point.

The important point is that Article X, Section 4(c)’s requirement for

spousal joinder in the execution of a mortgage on homestead property must

be satisfied in order for the mortgage lien to encumber the property and

be enforceable in foreclosure. Therefore, the exception to the forced sale

exemption in Section 4(a) for purchase money mortgages does not alter the

distinct constitutional restraint on alienation in Section 4(c). Both

provisions can be read in harmony. Article X, Section 4(c)’s prohibition on

the alienation of homestead property without the spouse’s joinder applies

to both the initial acquisition of homestead property through a purchase

money mortgage and any other alienation of the homestead property.

For these reasons, we reverse the summary final judgment on Count I

for mortgage foreclosure and remand for the trial court to (1) deny the

Trust’s motion for summary judgment on the mortgage foreclosure count,

and (2) address the Trust’s motion for summary judgment on the counts

for an equitable vendor’s lien and equitable subrogation lien. See Spikes,

106 So. 3d at 478 (holding that a purchase money mortgage executed only

by the husband gave rise to an equitable vendor’s lien); Crawford, 266 So.

3d at 1277 (holding that the trial court erred by entering a judgment for

mortgage foreclosure against the non-signatory spouse’s homestead but

did not err in imposing an equitable lien on the property). Because the

trial court did not rule upon the Trust’s alternative counts for equitable

relief, we do not reach those issues in this opinion. See Mendelson v. Great

W. Bank, F.S.B., 712 So. 2d 1194, 1197 (Fla. 2d DCA 1998) (reversing

foreclosure judgment but declining to address the issue of the bank’s

entitlement to an equitable lien because “the circuit court never ruled on”

the bank’s equitable lien claim). We also decline to reach any of the

Husband’s other arguments for reversal.

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Reversed and remanded.

GERBER and FORST, JJ., concur.

* * *

Not final until disposition of timely-filed motion for rehearing.

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