Nationstar Mortgage Company d/b/a Champion Mortgage Company filed a reverse mortgage foreclosure action against Mary E. Levine following the death of her husband. Nationstar claimed that Mrs. Levine’s deceased husband was the only borrower under the, reverse mortgage agreement executed with Nationstar, and that upon his death, she was required to move out of the property that was the subject of the reverse mortgage unless she paid off the entirе outstanding principal balance of the loan. The circuit court, though, granted Mrs. Levine’s summary judgment motion, ruling that she too was a borrower under the reverse mortgage along with her husband; Nationstar appealed. Based on the facts presented and the weight of the applicable case law, we reverse the trial court’s summary judgment decision.
In February 2009, Mr. Levine executed an adjustable-rate note home equity conversion in favor of Sterling Mortgage Serviсes, Inc. In the note, Mr. Levine promised to repay the “Lender” (defined as Sterling “and its successors and assigns”) for any money borrowed up to $195,000, plus interest. Paragraph 7 of the note provided the conditions under which the Lender could declare the debt immediately payable in full. One of these conditions was if “[a] Borrower dies and the Property is not the principal residence of at least one surviving Borrower.” The note defined the “Borrower” as “each persоn signing at the end of this Note.” Here, only Mr. Levine executed the note.
At the same time, both Mr. and Mrs. Levine signed an adjustable-rate home equity conversion mortgage (also known as a reverse.mortgage) granting a security interest in their home. At thе beginning of the reverse mortgage, the document stated that “[t]he mortgagor is Julian C. Levine, joined by his wife, Mary E. Levine whose address is: 2944 Eagles Nest Way Port St. Lucie, FL 34952 (“Borrower”).” (Emphases added). The bottom of the reverse mortgage contained two signature lines in the section for borrower signatures. Above these signature lines read, “BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s) executed by Borrower and recorded with it.” Directly above these two lines was the word “Borrowers” (in the plural), yet under the line for Mrs. Levine’s signature was the preprinted text “Mary E. Levine, Non-Borrowing Spouse.” (Emphases added).
9. Grounds for Acceleration of Debt.
(a) Due and Payable. Lender may require immediate payment-in-full of all sums secured by this Security Instrument if:
(i) A Borrower dies and the Property is not the principal residence of at least one surviving Borrower; ....
In its complaint, Nationstar alleged that it could foreclose pursuant to paragraph 9(a)(i) because the subject property was no' longer the residence of at least one surviving borrower, as Mrs. Levine was not a borrower acсording to the preprinted “non-borrowing spouse” text below her signature line. Mrs. Levine countered that paragraph 9(a)(i) did not allow Nationstar to foreclose since she was in fact a borrower under the reverse mortgage, аs evidenced by: 1) the definition of “Borrower” in the first paragraph of the reverse mortgage, which explicitly included her by name; 2) the provision above the signature lines stating that “BY SIGNING BELOW, Borrower accepts and agrees to the terms and сovenants” contained in the reverse mortgage; and 3) the term “Borrowers” placed directly above the signature lines.
Mrs. Levine moved for summary judgment. At the hearing on that motion, Na-tionstar asserted that summary judgment was inappropriatе because the inconsistencies within the reverse mortgage rendered Mrs. Levine’s status as a “borrower” ambiguous, thereby necessitating the consideration of extrinsic evidence to glean the parties’ intent. The court disagreed with Nationstar and granted summary judgment for Mrs. Levine, finding that Na-tionstar was precluded from foreclosing because the reverse mortgage unambiguously defined Mrs. Levine as a borrower.
“A trial court’s interpretation of a contract is reviewed de novo. The same standard applies to the review of the entry of summary judgment.” 19650 NE 18th Ave. LLC v. Presidential Estates Homeowners Ass’n,
“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.” Sunshine State Ins. v. Jones,
In cases where a contract is ambiguous, summary judgment is usually improper. Berkowitz v. Delaire Country Club, Inc.,
“Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties tо interpret the language in two or more possible ways.” Id. at 1151-52. A patent ambiguity is intrinsically apparent on the face of the document due to “the use of defective, obscure, or insensible language.” Emergency Assocs. of Tampa, P.A. v. Sassano,
A significant difference between patent and latent ambiguities is that extrinsic evidence is normally not admissible to construe the former because its admittancе “would allow a trial court to rewrite a contract with respect to a matter the parties clearly contemplated when they drew their agreement,” Emergency Assocs. of Tampa,
Yet despite the general prohibition against using extrinsic evidence to clarify patent ambiguities, an exception to the rule aрplies where the patent ambiguity at issue concerns “identity, capacity, or the parties’ relationship with one another”:
Typieally, the parol evidence rule provides that evidence outside the contract languаge “may be considered only when the contract language contains a latent ambiguity.” Duval Motors Co. [v. Rogers,73 So.3d 261 , 265 (Fla 1st DCA 2011)] (citing Wheeler v. Wheeler, Erwin & Fountain, P.A.,964 So.2d 745 , 749 (Fla. 1st DCA 2007)).... Usually, a court may not resolve a patent ambiguity—an ambiguity appearing on the faceof the document—by consideration of parol evidence. Mac-Gray Servs., Inc., 915 So.2d at 659 (citing Crown Mgmt. Corp. v. Goodman,452 So.2d 49 , 52 (Fla. 2d DCA 1984); Landis v. Meats,329 So.2d 323 , 325-26 (Fla. 2d DCA 1976)).
However, courts allow parol evidence regarding identity, capacity, and the parties’ relationship with one another even when the ambiguity exists on the face of the document because the court would not be rewriting the terms of the contract. Landis,329 So.2d at 326 (stating that when “the аmbiguity is patent, to admit evidence would be improper since it would, in effect, allow the court to rewrite the contract for the parties by supplying information the parties themselves did not choose to include,” but “that distinction is not rеlevant here since the court was only interested in determining the capacity of the parties who entered the agreement rather than in varying or supplying any terms to the agreement”).
Fi-Evergreen Woods, LLC v. Robinson,
In finding that the reverse mortgage agreement unаmbiguously defined Mrs. Levine as a “borrower” under its terms, the trial court concluded there were no genuine issues of material fact as to the document’s supposed lack of ambiguity. We disagree. Although there was nothing ambiguous about the entailments of being a “borrower” as used in the agreement, parts of the reverse mortgage seemed to define Mrs. Levine as a “borrower,” while the undefined term “non-borrowing spouse” printed below her signature line reasonably suggested otherwise. This internal contradiction constituted a patent ambiguity because it appeared on the face of the agreement; no extrinsic facts or evidence were needed to reveal the ambiguity.
Nevertheless, it was improper to use summary judgment to resolve this kind of patent ambiguity. As the Second District noted in Mac-Gray Services regarding latent ambiguities, “[w]here there is a latent ambiguity affecting a disputed contract provision, there necessarily will be a disputed issue of material fact. Accordingly, ‘[w]hen an agreement contains a latent ambiguity ... the issue of the correct interpretation of the agreement is an issue of fact which precludes summary judgment.’ ”
The construction of the present contract is at issue only because the agreement contained conflicting indications as to Mrs. Levine’s status as a borrower. It follows, then, that the contraсt may be properly construed only after a consideration of the circumstances under which it was made and the meaning ascribed by the parties to its ambiguous language. The parties must therefore be afforded the oppоrtunity to offer proof, not merely by affidavit or argument, but on a trial of the action.
Reversed and Remanded.
Notes
. "The phrase parol, or extrinsic evidence stands contrasted with that intrinsic evidence which is found in the writing itself.” B.F. Goodrich Co. v. Brooks,
. This court has previously expressed skeptiсism about assigning too much significance to the difference between patent and latent ambiguities:
Although there appears to be some divergence of opinion as to when parol evidence is properly admitted bеcause of the latent ambiguity—patent ambiguity dichotomy, the distinction between the type of ambiguity involved is one of form over substance. The growing and better reasoned trend of authority indicates that the introduction of parol evidence to probe the true intent of the parties is proper, irrespective of any technical classification of the type of ambiguity present.
Royal Cont’l Hotels, Inc. v. Broward Vending, Inc.,