Appeal No. Case No.


APPEAL IN CAUSE NO. 2009-CA-0074735

Honorable Robert T. Burger, presiding


Respectfully submitted,

/s/ George Gingo /s/ James Orth
George Gingo FBN 879533 James Orth, FBN 75941
400 Orange Street 400 Orange Street
Titusville, FL 32796 Titusville, FL 32796
321-264-9624 321-264-9624
866-311-9573 (Fax) 866-311-9573 (Fax)


TABLE OF AUTHORITIES .............................................................................ii
STATEMENT OF THE CASE AND FACTS ....................................................1
I. Introduction ............................................................................................. 1
II. Appellant’s Statement of the Facts ..........................................................1
STANDARD OF REVIEW................................................................................9

SUMMARY OF THE ARGUMENT ................................................................9

CONCLUSION ..............................................................................................13
CERTIFICATE OF SERVICE ........................................................................14


Konsulian v. Bank
61 So.3d 1283 (Fla. 2d DCA, 2011)………………………………………. 12

Pitts v. Pastore
561 So.2d 297 (Fla. 2d DCA, 1990)……………………………………… 11

Samaroo v. Wells Fargo Bank
Case No. 5D13-1585 (Fla. 5th DCA, March 28, 2014)……………………11

Sudhoff v. Federal National Mortgage Association
942 So.2d 425 (Fla. 5th DCA, 2006)……………………………………….11

Fla. R. App. P. 9.130(b)(1)(a)……………………………………….………1


Article X, Section 4…………………………………………………………9, 10

I. Introduction
This appeal arises from a judgment of foreclosure entered against the Appel-
lant homeowner, THOMAS WEBSTER (“WEBSTER”), in favor of JP MORGAN
CHASE BANK (the “BANK”). The judgment was entered after a bench trial. The
Appellate Court of Florida has jurisdiction pursuant to Florida Rules of Appellate
Procedure, Rule 9.130(b)(1)(a).
II. Appellant’s Statement of the Facts
The one-count mortgage foreclosure complaint was originally filed by Chase
Home Finance, LLC on December 31, 2009. (R. 1) In paragraph 5 of the com-
plaint, the Bank pled that the property was owned by Patrice Kelty (hereafter,
“Kelty”) and Webster. The Bank attached a copy of the Note to its complaint. (R.
24 - 26) The Note was signed by Patrice Kelty, but it was not signed by Webster.
The Bank attached a copy of the mortgage to its complaint. (R. 7 - 18) Webster
had signed the mortgage. (R. 18) Page 1 of the mortgage stated that Kelty and
Webster were husband and wife. (R. 7) Under Webster’s signature line on the
mortgage, Webster was identified as “Borrower”. (R. 18) The Complaint was for
in rem relief only to foreclose on the property because Kelty had filed a bankruptcy
and discharged her liability on the note. (R. 1, paragraph 1; Transcript, page 101,
lines 8 - 12)
Paragraph 13 of the mortgage states:
Joint and Several Liability, Co-signers; Successors and Assigns Bound.
Borrower covenants and agrees that Borrower’s obligations and liability
shall be joint and several. However, any Borrower who co-signs this Securi
ty Instrument but does not execute the Note (a “co-signer”) (a) is co-signing
this Security Instrument only to mortgage, grant and convey the co-signer’s
interest in the Property under the terms of this Security Instrument; (b) is not
personally obligated to pay the sums secured by this Security Instrument,
and (c) agrees that Lender and any other Borrower can agree to extend, mod
ify, forbear or make any accommodations with regard to the terms of this
Security Instrument or the Note without the co-signer’s consult.
Subject to the provisions of Section 18, any Successor in Interest of Borrow
er who assumes Borrower’s obligations under this Security Instrument in
writing, and is approved by Lender, shall obtain all of Borrower’s rights and
benefits under this Security Instrument. Borrower shall not be released from
Borrower’s obligations and liability under this Security Instrument unless
Lender agrees to such release in writing. The covenants and agreements of
this Security Instrument shall bind (except as provided in Section 20) and
benefit the successors and assigns of Lender.
(R. 14 - 15)
Paragraph 15 of the mortgage stated in relevant part:
Notices. All notices given by Borrower or Lender in connection with this
Security Instrument must be in writing. Any notice to Borrower in connec
tion with this Security Instrument shall be deemed to have been given to
Borrower when mailed by first class mail or when actually delivered to Bor
rower’s notice address if sent by other means. Notice to any one Borrower
shall constitute notice to all Borrowers unless Applicable Law expressly re
quires otherwise. The notice address shall be the Property Address unless
Borrower has designated a substitute notice address by notice to Lender.
Borrower shall promptly notify Lender of Borrower’s change of address. If
Lender specifies a procedure for reporting Borrower’s change of address,
then Borrower shall only report a change of address through that specified
procedure. There may be only one designated notice address under this Se
curity Instrument at any one time.
Page 3 of the mortgage indicated that the Borrower’s notice address was
4655 Elena Way, Melbourne, Florida 32934. This address was the same as the
property address. Plaintiff’s complaint included a copy of the notice of default.
(R. 4) The notice of default indicates on its face that it was not sent to the notice
address (property address), instead it was sent to 6230 Riverwalk Lane, Unit 5,
Jupiter, Florida 33458. (R. 4)
In paragraph 9 of the complaint, the Bank pled that “All conditions prece-
dent to the acceleration of the Mortgage Note and foreclosure have been performed
or have occurred.” Webster’s First Amended Answer and Affirmative Defenses
disputed the occurrence of the condition precedent that Plaintiff provided notice of
default. (R. 92 - 105) In particular, Webster’s first affirmative defense was lack of
notice of breach (default). (R. 102 - 103)
At trial on January 17, 2014, the Bank's witness was handed Exhibit 5
which she identified as the breach letter (also known as “notice of default”) and
that she testified that it was sent to the Borrower at her mailing address. (Tran-
script, page 40, lines 15 - 24) The statement that the breach letter was sent to the
Borrower’s mailing address was objected to by Webster’s counsel on grounds of
hearsay and lack of foundation in that the Bank's witness was testifying as to the
contents of the document which had not yet been admitted into evidence. (Tran-
script, page 40, lines 25 - through page 41, lines 1 - 7) The Court overruled the ob-
jection and said that the Bank's witness was merely authenticating the document as
to what it is. (Transcript, page 41, lines 11 - 13)
The breach letter indicated that it was sent from Chase Home Finance, LLC
to Patrice J. Kelty, 6230 Riverwalk Lane, Unit 5, Jupiter, Florida 32458 on Feb-
ruary 14, 2009. (R. 106 (Evidence/Exhibit Log); also see Transcript, page 42, lines
18 - 21; page 44, lines 21 - 23) The Bank’s witness testified that she did not work
for Chase Home Finance, LLC when the notice of default was allegedly mailed on
February 14, 2009. (Transcript, page 42, line 18 through page 43, line 2) The
Bank’s witness testified that she did not have any personal knowledge that the no-
tice of default had been mailed and she had not confirmed with anyone at Chase
Home Finance, LLC that the letter had been mailed. (Transcript, page 43, lines 3 -
The Bank's witness confirmed that the breach letter was not sent to the prop-
erty address and that she did not have any document to demonstrate the Kelty had
changed her notice address to the address the letter was actually mailed. (Tran-
script, page 44, line 21 through page 47, line 14)
The Bank's witness testified that the address the default notice was sent to
was not the property address, but instead it was Kelty’s mailing address and that
she did not bring to court any document to establish that this address was the “no-
tice address”. Webster’s counsel raised objections based on hearsay and specula-
tion. The Court overruled these objections. The Court admitted Exhibit 5 - the
notice of default - into evidence. (Transcript, page 45, line 1 through page 48, line
The Bank’s witness further testified that the first missed payment on the loan
was November 1, 2008, and that that particular payment that was due was pursuant
to a loan modification agreement. (Transcript, page 66, line 19 through page 67,
line 10) On cross-examination, Webster’s counsel stated he had not received any
loan modification document in discovery, and he wanted to know what address was
given for Ms. Kelty in the loan modification agreement. (Transcript, page 68, line
24 through page 69, line 2) The Bank’s witness did not know what address Kelty
had given in the loan modification agreement. (Transcript, page 69, lines 1 - 13)
In Webster’s case in chief, Webster testified that before the mortgage loan
was taken out, he owned the property which as his homestead, that he and Kelty
were married, that the property address was 4655 Elana Way, Melbourne, (Florida),
and that he executed the mortgage but did not execute the note. (Transcript, page
80, lines 1 through page 81, line 5; also see page 86, lines 5- 11; also see page 87,
lines 21 - 24))
Webster further testified that he was the person who made the payments on
the mortgage loan and that the first time he learned of the breach letter was when
he was sued in foreclosure. (Transcript, page 81, line 6 - 16)
Webster testified that his mother was a person of some wealth. (Transcript,
page 87, lines 6 - 11) Webster testified that he did have a method by which he
could have paid off the mortgage. (Transcript, page 81, lines 17 - 20) On Web-
ster’s counsel’s proffer, it was explained that Webster’s mother would pay off the
mortgage for Webster. (Transcript, page 85, lines 11 through page 86, line 1)
Webster testified that he had been in contact with the Bank, that the Bank told him
to cease making payments for 90 days and that he would then get assistance. When
he called the Bank on the 91st day to make an offer of money, the Bank refused to
speak to him, claiming he did not have authorization to speak on behalf of Patrice
Kelty. (Transcript, page 88, line 4 through page 89, line 7) The Bank’s counsel
questioned Webster about whether it was reasonable to expect a foreclosure if he
stopped making payments. Webster testified that he did exactly what the loan ser-
vicer told him to do. (Transcript, page 91, lines 18 - 22) Webster testified “There
was money ready to be placed in the hands of your client, and they refused
it.” (Transcript, page 92, lines 1 - 2)
The Court questioned the relevance of the testimony about Webster’s ability
to pay the mortgage loan. Webster’s counsel explained that the mortgage provided
for cure and that had Webster received the default notice, he could have cured the
default. (Transcript, page 81 line 24 through page 82, line 9) The Court ques-
tioned the fact that Webster did not sign the Note and whether Webster had a right
to receive notices pursuant to the Mortgage. (Transcript, page 82, lines 10 - 13)
Webster’s counsel directed the Court to paragraph 13 of the Mortgage which pro-
vided that Webster was an obligor under the mortgage, that the mortgage and not
the Note provided for a breach letter, and that the Bank was obligated under the
mortgage to send the breach letter to the property address in the mortgage. (Tran-
script, page 82, lines 14 - 24) The Court succinctly stated the issue as “Since he
was not -- he did not sign the note, does he have the right to these notices?”.
(Transcript, page 82, lines 11 - 13)
The Court again asked how Webster’s having funds was relevant to paying
the mortgage. (Transcript, page 83, lines 9 - 11) Webster’s Counsel advised the
Court that paragraph 19 provides the Borrower the right to reinstate after accelera-
tion and cure the default, the signature line on the mortgage provides that Webster
is a Borrower, that paragraph 13 of the mortgage provided that Webster was an
obligor under the mortgage and that paragraph 15 of the mortgage provides the
Borrower is entitled to notice at the property address. (Transcript, page 83, lines
12 through page 84, line 5) The Court questioned whether the term “Borrower”
was defined by the mortgage. Webster’s counsel indicated that the term was not
defined, but that public policy should say that if a person is married to a spouse
who signed the note, and that if it’s that person’s homestead, there should be an eq-
uitable principle for a marital right to cure the breach. (Transcript, page 84, line 6
- 15)
In closing argument, Webster’s counsel advised there was one issue present-
ed by the defense, and that was whether or not Webster had the right to cure under
the mortgage note. (Transcript, page 95, line 24 through page 96, line 10) The
Bank’s counsel argued that “The only person that is responsible for curing a default
is the person who is on the account. And the only person who was on the account
is the person who has availed themselves personally liable for those amounts due
and owing, and that person is the person who executed the note. Mr. Webster is
not personally liable for this.” (Transcript, page 98, lines 11 - 19.)
However, under the unique facts of this case, neither was Kelty liable for the
debt. The Court stated that the Borrower was Kelty as she signed the note, and that
Webster had no right to cure (thus he had no right to notice of default). Transcript,
page 100, line 20 through page 101, line 1)

Questions of law are subject to a de novo standard of appellate review.
Reinish v. Clark, 765 So.2d 197(Fla. 1st DCA 2000).

The sole purpose of this action was an in rem action to foreclose the mort-
gage. That’s because Kelty was not liable on the note as she had discharged the
debt in a bankruptcy and Webster did not sign the note. Webster’s mortgage was a
binding contract with the Bank for which Webster gave consideration. That con-
sideration was his Article X, Section 4 right to a homestead exemption by giving
the Bank a lien priority over his interests in the property. The Bank refused to
speak to Webster regarding the mortgage loan because it contended he did not have
a right to cure the defaulted mortgage. The Court held that Webster did not have
the right to cure the mortgage loan, and as such, he had no right to have the Bank
honor the mortgage provision requiring that notice of default be sent to the notice
address. In this case, the notice address was the property address where Webster
resided. Webster was a Borrower under the mortgage contract and had a right to
cure the defaulted mortgage and a right to have the Bank send notice of default to
the notice address.


Webster had owned the subject property as his homestead before the subject
mortgage was executed. Art. X, §4, Fla. Const., states:
Article X SECTION 4. Homestead; exemptions.--
(a) There shall be exempt from forced sale under process of any court, and
no judgment, decree or execution shall be a lien thereon, except for the pay-
ment of taxes and assessments thereon, obligations contracted for the pur-
chase, improvement or repair thereof, or obligations contracted for house,
field or other labor performed on the realty, the following property owned by
a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hun-
dred sixty acres of contiguous land and improvements thereon, which shall
not be reduced without the owner's consent by reason of subsequent inclu-
sion in a municipality; or if located within a municipality, to the extent of
one-half acre of contiguous land, upon which the exemption shall be limited
to the residence of the owner or the owner's family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the own-
(c) The homestead shall not be subject to devise if the owner is survived by
spouse or minor child, except the homestead may be devised to the owner's
spouse if there be no minor child. The owner of homestead real estate, joined
by the spouse if married, may alienate the homestead by mortgage, sale or
gift and, if married, may by deed transfer the title to an estate by the entirety
with the spouse. If the owner or spouse is incompetent, the method of alien-
ation or encumbrance shall be as provided by law.

Webster did not make a gift to the Bank of a first lien on his homestead
property. Instead, he made a contract with the Bank, with rights and obligations
given freely in exchange by both Webster and the Bank. In Pitts v. Pastore, 561
So.2d 297, 301 (Fla. 2d DCA, 1990), the Court stated that a mortgage is an execu-
tory contract or agreement, in which one generally promises to allow a future sale
of real property if a debt is not paid, and it is also a specific lien on the property
described in the mortgage. In executing the mortgage contract, the consideration
Webster gave was his valuable homestead right to a priority lien in favor of the
Bank. The quid pro quo given by the Bank was that Webster had the right to cure a
mortgage default as set forth in paragraph 19 of the mortgage.
In Sudhoff v. Federal Nat. Mortg. Ass'n, 942 So.2d 425 (Fla. 5th DCA,
2006), Mr. Sudhoff owned a parcel of land individually. He signed a note and a
mortgage but his wife only signed the mortgage. A subsequent foreclosure action
on that note and mortgage was vacated because this Court found that Fannie Mae’s
failure to join Mrs. Sudhoff deprived her of her equity of redemption. This Court
noted that the term “Borrower” presumably included Mrs. Sudhoff because she
was designated a Borrower in the mortgage, and she could reinstate the mortgage
in the event of default. (At page 427) There is no need to presume that Webster is
a “Borrower”, the mortgage contract clearly states in paragraph 13 that Webster is
a Borrower and a co-signer of the mortgage.
In Samaroo v. Wells Fargo Bank, Case No. 5D13-1585 (Fla. 5th DCA,
March 28, 2014) this Court recognized that there existed in the mortgage contract a
requirement for certain information that the Bank is “. . . bound to give its borrow-
er in default, . . .”. (At page 4) Paragraph 15 of the mortgage provided that the
Borrower was to receive notice of default at the notice address, unless that address
was changed pursuant to the specifications set forth in paragraph 15. The Bank’s
witness testified that there had been a loan modification agreement and that the
first payment missed was the payment due under that modification agreement. The
Bank’s witness testified that she did not know what address was given by Kelty for
that modification agreement. The Bank’s witness did not offer any evidence that
the notice address had been changed pursuant to the very specific procedure set
forth in paragraph 15, therefore, the notice address continued to be the property
address. The Court held that because Webster had no right to cure, he had no right
to demand that the Bank comply with paragraph 15 of the mortgage and provide
notice of default to the Borrower’s notice address, which happened to be Webster’s
The Bank’s counsel argued that notice of default is only required to be sent
to the person liable on the debt. This case has unique facts - no one was liable on
the debt - not Kelty because she discharged it in bankruptcy, and not Webster be-
cause he didn’t sign the note. In Konsulian v. Bank, 61 So.3d 1283 (Fla. 2nd DCA,
2011), the Court stated:
The language in the mortgage is clear and unambiguous. The word “shall” in
the mortgage created conditions precedent to foreclosure, which were not
satisfied. See Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA
2009). Under Florida law, contracts are construed in accordance with their
plain language, as bargained for by the parties. Auto–Owners Ins. Co. v. An-
derson, 756 So.2d 29, 34 (Fla.2000).

The mortgage contract does not make a distinction between a Borrower who
signs the note and mortgage versus a Borrower who only signs the mortgage. The
mortgage contract terms are clear and unambiguous - Webster was a Borrower and
the plain language of the mortgage contract allowed him the right to cure. Because
he had the right to cure, he was entitled to have notice of default sent to the notice
address, which was the property address. The failure to allow him the right to cure
and the failure to provide him notice of default are major breaches of the mortgage
WHEREFORE, the Circuit Court's judgment should be reversed and the trial
court directed to enter final judgment for Appellant.
Respectfully Submitted,
/s/ George Gingo
George Gingo FBN 879533
400 Orange Street
Titusville, FL 32796
(866)311-9573 (Fax)

/s/ James Orth
James Orth, FBN 75941
400 Orange Street
Titusville, FL 32796
(866)311-9573 (Fax)

I certify that the lettering in this brief is Times New Roman 14-point font and com-
plies with the font requirements of the Florida Rule of Appellate Procedure
/s/ George Gingo
George Gingo FBN 879533

I hereby certify that a true and correct copy of the foregoing has been fur-
nished this 30th day of April, 2014 via email to Van Ness Law Firm, P.A., 1239 E.
Newport Center Drive, Suite #110, Deerfield Beach, Florida 33442 at and
/s/ George Gingo
George Gingo FBN 879533