       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                           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.

                             No. 4D14-2672

                           [November 4, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;    Roger    B.    Colton,    Judge;   L.T.    Case    No.
502012CA006596XXXXMB.

   Craig A. Boudreau, Wellington, for appellant.

   Christopher W. Smart of Carlton Fields Jorden Burt, P.A, Tampa, and
Michael K. Winston, Dean A. Morande of Carlton Fields Jorden Burt, P.A.,
West Palm Beach, for appellee.

DAMOORGIAN, J.

   Lillian Vera (“Homeowner”) appeals a final summary judgment of
foreclosure entered 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 Claim Deed . . . [but that]
[s]aid interest, if any, is subject and inferior to the lien of Plaintiff’s
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

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final summary judgment for the Bank.

   On appeal, Homeowner argues that summary judgment was improper
because material issues of fact existed as to whether 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). “‘If the record reflects 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 2009).

   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 (3) 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. 3d DCA 2012).




    1   Homestead property may not be alienated by a married owner without
joinder or consent of the spouse. See Smith v. Reverse Mortg. Solutions, Inc., 40
Fla. L. Weekly D1624, D1625 (Fla. 3d DCA July 15, 2015) (holding that Florida’s
Constitution required the owner’s spouse’s “signature on the mortgage to
effectuate the lender's security interest in their homestead property”); Heath v.
First Nat’l Bank in Milton, 213 So. 2d 883, 887–88 (Fla. 1st DCA 1968) (holding
that the subject mortgage was void as being in violation of Florida’s homestead
protection because the spouse did not join or consent to the alienation of the
homestead property).

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    While the Bank maintains that the homestead defense must fail
because Homeowner never specifically 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:

      The 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 County, 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 ROGEEIO VERA.

Homeowner, in turn, 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
specifically 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.

                           *         *       *

   Not final until disposition of timely filed motion for rehearing.




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