but the next case is the est of caldwell jones jr versus live well financial mr me jim is here for the palace and mr flynn is finally here for the fifteen minutes and i did probably thirty five minutes with arguments so i'll try to get right to the meat of it with first look at the statute twelve u s c section seventeen fifteen c twenty j spouse it doesn't say anything about the mortgage easy right you're going to say about the mortgagee you can read judge wilson it does not but i does define who went home only hears it defines a surviving spouse as a homeowner therefore if you couple the interpretation in the statement of the statute defining the surviving spouse as a homeowner and you look to the terms of the contract to determine whether or not that surviving spouse homeowner is also a contract and party you come up with the determination of whether or not that homeowner surviving spouse has the country actually rights and obligations to enforce and to raise issues related to that contract if you go to page thirty nine of the security paragraph nine it talks about and this is the contract it talks about specifically they're surviving borrower now the interesting aspect of that i just got such a form that is prepared on the assumption that there may be two or more borrowers right that is correct but unfortunately this particular one only has one borrower well we're just vets and i would respectfully disagree if you go to page forty four and the language specifically say this and i want to quote it directly borrower except and agree to the terms and covenants contained in security and cement and any writer executed by a bar or and record it with it this is signed by vanessa jones dated seven twenty eight two thousand and fourteen and karr will jones there is no distinction whether or not mr jones is not a part of that contract there is no distinction claiming that she is a witness it is a form that may be poorly drafted but does not distinguish as it relates to the contract in part is that mr jones as the egg executi party in that contract has no rights and reminisce pursuant to that contract i would point out but but that doesn't incorporate the statutory language it doesn't say the statute is incorporated into this agreement well your honor i was in addressing judge wilson's question about the statute my i pointed out that the question becomes whether or not a homeowner and debtor view not just once judges knew something i would suggest to you that paragraph nine which is the excel aeration clause that she signs basically says that she has the right and the borrower to remain in the property if you will if she can plaster certain things paying taxes that she was the judge i think it is page forty i think it's page thirty nine i could be wrong it could be thirty eight but i think it's page thirty paragraph nine a one of mortgage statements states that lender may require immediate payment in full of all some secured in the security instrument if a borrowed dies and the property is not the principal residence of the surviving borrower you she may be deemed to be a non debtor surviving spouse before terms of the contract she is a signature on the contract and now she can't enforce the contract it makes no logical sense she's  a she is a bar as as relates to the excellent acceleration clause she's the bar as it relates to the military i haven't looked at the actual mortgage agreement but what you're saying is she's not named anywhere in the agreement as a borrower but she signed it to him and on the borrowers line along with her husband she was required by the appellee to sign on the land with the husband as the borrower and this is under georgia law you don't have homestead and all the other factors that sometimes come into play so basically waiving anything she just signing that's all she's doing i would say she's not waiving anything if she's signing i would think that she's signing with all the rights and obligations as a signature on a contract your honor i'm sorry please go i didn't mean to interrupt you please keep going otherwise why have her sign on a contract which you even though she's not named in the agreement as a borrower sign in three places the first place judge events and would be at the end of the acceleration and not just judgments and we judge will send a new something she signs at the end of the acceleration paragraph saying that she agrees that if these things happen she don't pay taxes she's not a resident of the house they can immediately ask for months on she says they are then asked the required her to sign yes is there evidence in the record that i mean like i'm just thinking about my own personal experience if if there's a document before me and my wife and i aren't sure of who should sign this thing just in the exercising sort of caution we're both going to sign there is nothing in the record because there was no testimony in any affidavit signed by mr jones who was just here that she was required to do so other then my representation to you today that she was required to do so one really i mean what you put in your brief words you're relying primarily on a policy in a congressional intent argument that's correct and that's and that's my rebuttal argument your honor that i was saving the last five minutes to argue your better argument would be the one that you're making day and we have to take a look at the contract because i understand your argument is if we look at the contract she's a singer under the contract and live well make certain agreements with mrs jones  that will enter into a contract not just work all well but with and also jones as well as they are going to ask that's correct you're on it just takes my brain a little time to kind of come up to speed with everything that i should be arguing with that is in fact the case well let's hear from see what they have to say about that is the court has indicated judgments and in particular is the argument being made today is an argument that doesn't appear to have been briefed by the appellate in this case has to as you said judge wilson the argument on appeal is a policy argument as to whether or not one page ninety seven it's the first page of the document given the record that we currently have were there at the twenty six days your honor so we don't know exactly why she did that we also noted before just the ration he noted in his order  mrs jones had actually conveyed her interest to mr jones back in two thousand and twelve mr jones was the sole owner of the property at that time that's a nice dock to dash five that was attached to our reply brief that she is a surviving spouse and protecting her the contract is not specific to that your honor we're going paragraph in the paragraph nine hundred thirty nine yes your honor there are two different acceleration provisions in the contract judge the first requires approval of the secretary meaning check apartment of housing and urban development the other section of paragraph nine allows immediate payment in full without secretary approval so there was a distinct distinction made in the mortgage document between conditions that required secretary provable and conditions that did not theirs section a and b on that on the same page of the document were obviously proceeding under the section that does not require secretary approval that would be property is not the principal residence of at least one surviving borrower and that's the relevant provision here yawners it's undisputed that mr jones passed away in two thousand and fourteen approximately two months after the closing on this loan i believe he died of a heart attack tragically your honour's but it's undisputed that mr chen's was the sole bar on this loan mr jones in fact was the only individual among himself and his wife that would have been eligible under the jones is the sole borrower he's the sole individual that would have been eligible for a reverse mortgage under the very section code provisions that are being lied upon here by the appellant mr jones i believe at the time was fifty two years old you certainly an intent there you know yes but i think also we have to take congress at its word congress has statutes that they passed mean what they say and in this particular instance congress said this is what we want the secretary to do we want the secretary to impose certain conditions upon mortgages that the secretary will agree to insure under this particular federal program so your honor i can't speak for her and on this obviously i'm not here for them this alone doesn't meet their stats are again you're on i don't want to put her in a corner so to speak and speak for them but i will say that the statute in question says hud you can do this you can and you can insure i went on the contract statute beat any and don't you have to say i mean i realize it's a little of that but you really have to say that yeah this was not insurable loan under the hud program because the hud program says protect surviving spouses borrower or not and you've got to say yeah sure surviving spouse but not a borrower you're on a very good question judge and in response i think i will say whether or not hood should or should not have insured this particular mortgage the fact is that they did so i will say if hud should not have insured this particular mortgage then that's on them let me ask you mr flynn so your client live well didn't originate this reverse mortgage it was originated by someone else and you bought it right yes wired it in some way shape or form out here and so you has nothing to do with the way this was drafted originally that's correct judge yes we did not or you are subject to the contract and its provisions well why did you have that provisions or your honour's alluded to florida is actually instructive here in the fact that your honor is from the great state of florida i think may be helpful here and i think your honor is correct and i'm hypothesizing just a little bit here judge but i think the reason probably rights under the contract well a couple of things judge number one in georgia where title theory states so security needs such as this one is one that actually conveys legal title to the lender as security for a loan as opposed to   the fact is she did but it's also in the record shows that she didn't execute the loan agreement or the promissory note and the position throughout this case i want to get back to that is that she was a non or surviving that getting back to the primary should the has been briefed and has been raised on appeal if issue is whether or not the side statute imposes an obligation on my client as a private mortgage lender to to  do anything really the statute on its face imposes insurability an obligation upon the secretary doesn't impose an obligation upon a private mortgage lender such as my client that statute is not incorporated into the loan agreement that's not incorporated into the security two two one and then the edwards first reports morgan morgan solution part of florida cases are based on florida law which always require responsible signature joining right judge and that's that's why i alluded to the homestead provisions in florida earlier which other reasons to yes judge and in fact i will say that those cases both came out of the third district court of appeals down in florida that court has actually since issued a contrary opinion on this issue the cases one was  palmero that is twenty eight team florida app lexis five one four nine came out this past april and that was based on a more fully fleshed out record that the court had in front of it had all of the accompanying documents that went into this site with approval judge pressures opinion one out of the bankruptcy court up in massachusetts this past june that cases the alessio over c i t bank and a sign is twenty eighteen bankruptcy one seven one seven  to i think i heard you say she would be and she would have been in eligible to get this reverse mortgage because every at the time of originally it was originated yes judge that is correct she was fifty two i think you said she was the definition pomona was always of our opinion that it was a bar or that maybe we should have said that more distinctly but there was a reason that we distinctly went to the statute to talk about the surviving homeowner and the definition of it your second question just to does the contract define borrower on page one to page so i can look at his document but i hate to waste your time so you go ahead and say what you want to say i wanted to i wanted to address judgments and you asked me service specifically about pages and so page forty one of the contract requires the signature of both miss jones and caldwell jones also pages fifty four once again required the signatures of both caldwell jones and mrs jones and those documents are entitled fixed rate equity burgeon second security the first security i would just ask the question posed the issue that if the answer is as mr flynn said to the house was no longer in  mr jones then why would you have a person who has no interest in real estate to be required to sign a document transferring or pledging the real estate no different just knew some day and if you sold your house and your mortgage come to require this contract and i have read it as nauseum that says that she's not eligible so she needs to sign the last can i ask you just one quick question before you move on so you said it pages for the contract requires her to sign what does it say specifically does but nestor jones d nestor d jones dated seven twenty eight two thousand and fourteen seven twenty eight two thousand and fourteen witness where a borrower has signed in scale this security sealed this acuity instrument s of july two thousand and fourteen in the presence and there is a witness there got it so there's like a you what you're saying is there's a designated line for her sign there's not just that she happened to sign it there's a does she was just there you know and she just felt good about her maybe you can tell us why you didn't well you want to hurt was named bob bennett case bennett and then it more oil a little less was an equal protection argument that surviving spouses should be treated the same as the borrower so i did not think that that would then have been the best bang for my buck we got the  injunction for the foreclosure and henry county so i thought that i had probably done a great job for my client i did not think of adding good as a defendant i would say this you to and i'm sure that mr flynt probably forgot the verse mortgage was executed initially with american nationwide mortgage and i signed on the same date of july twenty eighth two thousand and fourteen to the appellee live well so it's not a situation where nationwide mortgage did something and in the lead will came along several years later and they're stuck with th