FLORIDA APPELLATE COURT REVERSES FORECLOSURE OF HOMESTEAD BASED ON CONSTITUTIONAL PROTECTIONS

The Fourth DCA reversed a foreclosure judgment entered against the estate of deceased mortgagor, Leticia Brown, and her spouse, Trevor Brown, because Trevor Brown did not sign the purchase money mortgage despite being married to Leticia when the bank originated the loan. Brown v. Towd Point Mortg. Tr. 2017-6, No. 4D2024-2438, 2025 Fla. App. LEXIS 7963 (4th DCA Oct. 22, 2025).

The Browns married in 1990, and Leticia took out a purchase money mortgage in 1999. Despite moving into the house with Leticia in 1999, 1 Trevor claimed he was not present at the loan closing and had no knowledge of the mortgage. 2 Notably, neither the mortgage nor the deed identified Trevor and the mortgage described Leticia as a “Single Person.” Towd Point Mortgage Trust (the “Trust”) obtained its interest in the note and mortgage in 2018.

Leticia passed away in May 2020. 3 Trevor advised the Trust of his wife’s passing but failed to make any mortgage payments. The Trust sent a demand notice to Leticia and when the default was not cured, initiated foreclosure proceedings in 2023. The Trust named Trevor individually and as the personal representative of Leticia’s estate and, in addition to seeking foreclosure (count I), the Trust also sought a vendor’s lien (count II) and equitable subrogation (count III). 4

Trevor answered the complaint and, relying on Article X, Section 4(c) of the Florida Constitution, asserted the mortgage was void because it was secured by his homestead, and he never joined in the mortgage or consented to a lien on his homestead. 5 The Trust moved for summary judgment and, relying on Florida Statute § 708.08(1) 6, argued that neither consent nor spousal joinder was necessary because the purchase money nature of the loan gave it priority over Trevor’s interest.

The trial court agreed with the Trust finding the purchase money mortgage was superior to Trevor’s homestead interest. 7 Notably, the court granted foreclosure, but did not rule on the counts of the complaint which sought equitable relief. Trevor appealed. The Fourth DCA reversed the foreclosure judgment finding Article X, section 4(c) clearly required spousal joinder when the mortgage was intended to encumber homestead property. 8 The Court explicitly found the constitutional provision prevailed over the conflicting statute. 9

The Court also explained that the mortgage was not void, but rather “ineffective as a lien…” against Trevor so the lien could not be foreclosed. 10 Given the well-established rights that homeowners enjoy relating to homestead property, the Court’s holding is not a surprise. Thankfully, the Trust can still seek equitable relief. The Court remanded the matter specifically directing the trial court to consider the Trust’s request for a vendor’s lien and equitable subrogation. 11

1 Brown, at *1-2.

2 Brown, at *2. Future references to this case are to this citation unless otherwise indicated.

3 Brown, at *1.

4 Brown, at *2-3.

5 Brown, at *5.

6 Florida Statute § 708.08(1) provides that a mortgages “executed by a married woman without joinder of her husband” are “valid and effective.”

7 Brown, at *6. Future references to this case are to this citation unless otherwise indicated.

8 Brown, at *8.

9 Brown, at *11.

10 Brown, at *10.

11 Brown, at *13.

---

`

Headquarters:

499 NW 70th Avenue, Suite 309 

Plantation, FL 33317

Main: 954-564-0071

Fax: 954-564-9252