Capalongo v. Deutsche Bank National Trust Co.
In a foreclosure action, the nonowner husband argued that his separately executed homestead waiver was ineffective because it was not physically attached to the mortgage his wife signed. The Second District affirmed partial summary judgment for the lender, holding that article X, section 4(c) of the Florida Constitution imposes no requirement that a spousal waiver be physically affixed to the mortgage; the spouse 'joins' the owner by participating in the transaction, and here the contemporaneously executed, notarized, and sequentially recorded waiver expressly referencing the security instrument unequivocally established waiver.
Key facts
- Nonowner husband challenged foreclosure by Deutsche Bank, arguing his wife's separately executed homestead waiver was ineffective because it was not physically attached to the mortgage she signed.
- Trial court granted partial summary judgment for the lender; Second District affirmed on appeal.
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Why it matters
This opinion appears to be the first Florida decision squarely rejecting the argument that a nonowner spouse's homestead waiver must be physically attached to the mortgage to satisfy the constitutional joinder… — full analysis with a trial
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