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Briefs and Other Related Documents
Only the Westlaw citation is currently
available.
NOTICE: THIS OPINION HAS NOT
BEEN RELEASED FOR PUBLICATION
IN THE PERMANENT LAW REPORTS.
UNTIL RELEASED, IT IS SUBJECT TO
REVISION OR WITHDRAWAL.
District Court of Appeal of Florida,
Fourth District.
Carmen A. GANCEDO and Antonio Lopez
Camino, Appellants,
v.
Rafael J. DEL CARPIO and Sylvia del
Carpio, Appellees.
No. 4D08-1735.
Aug. 26, 2009.
Background: Mortgagee brought foreclos-
ure action against mortgagor and his wife.
The Circuit Court, Seventeenth Judicial
Circuit, Broward County, Robert L. An-
drews, J., granted summary judgment to
wife. Mortgagee appealed.
Holding: On rehearing, the District Court
of Appeal, Taylor, J., held that wife was a
“consumer” entitled to disclosures under
the federal Truth in Lending Act (TILA)
and the extended cancellation period for
TILA nondisclosure, though wife was not a
signatory to the note at issue and the loan
was made solely to mortgagor.
Affirmed.
May, J., concurred specially with opinion.
West Headnotes
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
[1] Consumer Credit 92B 32
92B Consumer Credit
92BII Federal Regulation
92BII(A) In General
92Bk32 k. Truth in Lending, in
General. Most Cited Cases
Absent some obvious repugnance to the
federal Truth in Lending Act (TILA), Reg-
ulation Z, promulgated by the Federal Re-
serve Board, should be accepted by the
courts, as should the Board's interpretation
of its own regulation. Truth in Lending
Act, § 105, 15 U.S.C.A. § 1604; 12 C.F.R.
§ 226.1 et seq.
[2] Consumer Credit 92B 50
92B Consumer Credit
92BII Federal Regulation
92BII(B) Disclosure Requirements
92Bk50 k. In General. Most Cited
Cases
Wife of mortgagor who signed note and
gave a mortgage on residential property
titled solely in his name had an “ownership
interest” in the subject property and, thus,
was a “consumer” entitled to disclosures
under the federal Truth in Lending Act
(TILA) and the extended cancellation peri-
od for TILA nondisclosure, though wife
was not a signatory to the note at issue and
the loan was made solely to mortgagor,
where mortgagor and wife were married at
the time of the subject mortgage loan,
such that wife had homestead rights in the
property. West's F.S.A. Const. Art. 10, §
4(c); Truth in Lending Act, § 102 et seq.,
15 U.S.C.A. § 1601 et seq.; 12 C.F.R. §§
226.2(a)(11), 226.23(a), 226.32.
Dennis R. Bedard, Miami, for appellants.
Daniel T. Pascale of Berger Singerman,
Miami, for appellees.

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TAYLOR, J.
ON MOTION FOR REHEARING
*1 We grant the motion for rehearing,
withdraw our prior opinion, and substitute
the following in its place.
Carmen A. Gancedo and Antonio Lopez
Camino filed a mortgage foreclosure ac-
tion against Sylvia Del Carpio and her then
husband, Rafael J. Del Carpio. The trial
court granted summary judgment in favor
of Sylvia Del Carpio, based on Sylvia's res-
cission of the mortgage for Gancedo's fail-
ure to provide her with certain disclosures
required by the federal Truth in Lending
Act (TILA). Gancedo and Camino appeal,
arguing that they had no TILA disclosure
obligations to Sylvia because she had no
ownership interest in the property at the
time of the mortgage execution and thus
could not invoke the protection of TILA.
We disagree and affirm.
On April 12, 2005, Gancedo loaned
$60,000 to Rafael. To secure the loan, Ra-
fael gave Gancedo a second mortgage on
residential property titled solely in his
name. The mortgage was executed by both
Rafael and Sylvia. However, the note was
signed only by Rafael. When the mortgage
was executed, Gancedo did not provide
either Rafael or Sylvia Del Carpio with
certain disclosures required by TILA. Ra-
fael defaulted on the note and mortgage,
and Gancedo filed this mortgage foreclos-
ure action on August 6, 2008. On Decem-
ber 20, 2006, Sylvia purportedly exercised
her right to cancel the transaction. She as-
serted she was entitled to TILA's extended
three-year time period for cancellation be-
cause she was not given the necessary
TILA disclosures. As discussed below, she
was entitled to these disclosures if she had
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 2
an ownership interest in the property.
TILA is a federal statute that regulates the
terms and conditions of consumer credit. In
re Williams, 291 B.R. 636, 643
(E.D.Pa.2003). TILA's purpose is to pro-
mote the informed use of credit by
“consumers.” Id. (quoting 15 U.S.C. §
1601). Through its enactment, Congress
sought to assure a meaningful disclosure of
credit terms so that the “consumer” would
be able to compare more readily the vari-
ous credit terms available and avoid the un-
informed use of credit. Id. (quoting 15
U.S.C. § 1601(a)).
[1] In 15 U.S.C. § 1604, Congress author-
ized the Federal Reserve Board to pre-
scribe regulations to carry out the purposes
of TILA. “Pursuant to this authority, the
Federal Reserve Board promulgated
‘Regulation Z’ which is located in 12
C.F.R. pt. 226.” Id. (quoting Rossman v.
Fleet Bank (R.I.) Nat'l. Ass'n., 280 F.3d
384, 389 (3d Cir.2002)). Absent some
“obvious repugnance” to the statute, Regu-
lation Z “should be accepted by the courts,
as should the Board's interpretation of its
own regulation.” Id. (quoting Anderson
Bros. Ford v. Valencia, 452 U.S. 205, 219,
101 S.Ct. 2266, 68 L.Ed.2d 783 (1981)).
[2] The issue in this case is whether Sylvia
Del Carpio is a “consumer” entitled to dis-
closures and, failing proper disclosures, an
extended cancellation period under Regula-
tion Z. See 12 C.F.R. § 226.23(a) (granting
extended right to cancel to “consumers” in
the event of non-disclosures); 12 C.F.R. §
226.32 (specifying disclosure requirements
to consumer credit transactions secured by
the “consumer's” principal dwelling). The
term “consumer,” as used in Regulation Z,
is defined by 12 C.F.R. § 226.2(a)(11):
*2 Consumer means a cardholder or a nat-

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ural person to whom consumer credit is
offered or extended. However, for pur-
poses of rescission under §§ 226.15 and
226.23, the term also includes a natural
person in whose principal dwelling a se-
curity interest is or will be retained or ac-
quired, if that person's ownership interest
in the dwelling is or will be subject to the
security interest.
Section 226.23(a)(1) provides:
§ 226.23 Right of rescission.
(a) Consumer's right to rescind. (1) In a
credit transaction in which a security in-
terest is or will be retained or acquired in
a consumer's principal dwelling, each
consumer whose ownership interest is or
will be subject to the security interest
shall have the right to rescind the transac-
tion.
Sylvia concedes that consumer credit was
not extended to her, as she was not a sig-
natory to the note. She makes clear that the
loan was made only to her husband. Never-
theless, 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 pur-
poses 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 cancel-
lation period for TILA non-disclosure. The
trial court properly granted her motion for
© 2009 Thomson Reuters. No Claim to Orig. US Gov. Works.
Page 3
summary judgment.
Affirmed.
MAY, J., concurs specially with opinion.
SHAHOOD, GEORGE A., Senior Judge,
concurs.MAY, J., concurring specially.
I concur with the majority in its new opin-
ion, but write to express my concern that
the winning issue for the appellee-
homestead-is an issue raised for the first
time in her motion for rehearing. The issue
was not raised in the pleadings in the trial
court, not in the motion for summary judg-
ment, not in the argument of counsel, and
not in the answer brief filed in this court.
Yet, miraculously in the motion for rehear-
ing from our initial opinion reversing the
summary judgment, homestead suddenly
appears.
Generally issues not raised in a party's
brief(s) are deemed waived and may not
be considered for the first time in a mo-
tion for rehearing. See Polyglycoat Corp.
v. Hirsch Distribs., Inc., 442 So.2d 958,
960 (Fla. 4th DCA 1983) (“When points,
positions, facts and supporting authorities
are omitted from the brief, a court is en-
titled to believe that such are waived,
abandoned, or deemed by counsel to be
unworthy.”); see also Fla.R.App.P.
9.330(a) (“a motion for rehearing ... shall
not present issues not previously raised in
the proceeding.”). As an appellate court,
however, we are obligated to entertain
any basis to affirm the judgment under
review, even one the appellee has failed
to argue. See Dade County School Bd. v.
Radio Station WQBA, 731 So.2d 638,
644-45 (Fla.1999); see also Cohen v. Mo-
hawk, Inc., 137 So.2d 222, 225
(Fla.1962). In other words, an affirmance
is required if any theory, whether argued
or not, would sustain the judgment.
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*3 Jaworski v. State, 804 So.2d 415, 419

(Fla. 4th DCA 2001). For this reason, I
concur.
Fla.App. 4 Dist.,2009.
Gancedo v. Del Carpio
--- So.3d ----, 2009 WL 2601628 (Fla.App.
4 Dist.), 34 Fla. L. Weekly D1744
Briefs and Other Related Documents (Back
to top)
• 2008 WL 5011565 (Appellate Brief) Ap-
pellant's Reply Brief (Oct. 7, 2008) Origin-
al Image of this Document (PDF)
• 2008 WL 5011564 (Appellate Brief) An-
swer Brief of Appellee Sylvia Del Carpio
(Sep. 16, 2008) Original Image of this
Document (PDF)
• 2008 WL 4193226 (Appellate Brief) Ap-
pellants' Initial Brief (Aug. 18, 2008) Ori-
ginal Image of this Document (PDF)
• 4D08-1735 (Docket) (Apr. 29, 2008)
END OF DOCUMENT

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