Wednesday, August 26, 2009

Fourth District Holds Homestead Interest Sufficient To Require TILA Notice Even Without Property Ownership Interest

In Gancedo v. Del Carpio (4D08-1735), the Fourth District granted a motion for rehearing, withdrew its prior decision and released this decision. The issue was whether the wife of a debtor was entitled to disclosures under the federal Truth in Lending Act (TILA) even though she was not an owner of the property. The court held:

The issue in this case is whether Sylvia Del Carpio is a “consumer” entitled to disclosures and, failing proper disclosures, an extended cancellation period under Regulation Z.


Sylvia concedes that consumer credit was not extended to her, as she was not a signatory to the note. She makes clear that the loan was made only to her husband. Nevertheless, she asserts that she had an “ownership interest” in the home, which would bring her within the definition of the term “consumer.” The record is clear that the Del Carpios were married at the time that the subject mortgage loan transaction was entered into. As such, Sylvia had homestead rights in the property. See Art. X, § 4(c), Fla. Const. We conclude that Sylvia’s homestead rights in the property constituted an “ownership interest” for purposes of TILA. See Parker v. Potter, 2008 WL 4539432 (M.D. Fla. Oct. 8, 2008).

Because Sylvia had an ownership interest in the home at the time the mortgage was executed, she was a “consumer” entitled to TILA disclosures and the extended cancellation period for TILA non-disclosure. The trial court properly granted her motion for summary judgment.


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