MEMORANDUM OPINION AND ORDER OVERRULING OBJECTION TO CONFIRMATION BY REVERSE MORTGAGE SOLUTIONS INC.

LAUREL M. ISICOFF, Bankruptcy Judge.

This matter came before me on January 9, 2018, upon Objection to Confirmation filed by Reverse Mortgage Solutions, Inc. ("RMS") (ECF #19). Because I find that the Debtor, Aleida C. Nunez (the "Debtor"), was the "Borrower" under the Reverse Mortgage1 encumbering the Debtor's home (the "Real Property"),2 even though the Debtor was not the Borrower under the loan secured by the Reverse Mortgage, the Debtor may cure the Reverse Mortgage defaults in her Chapter 13 Plan.3

FACTS4

On July 14, 2008, the Debtor's mother, Olga E. Nunez ("Mrs. Nunez"), executed a series of documents evidencing a loan made by RMS to Mrs. Nunez, in the maximum principal amount of $531,000.00 (collectively the "Loan Documents"). At the time the Loan Documents were executed, Mrs. Nunez, who was over 62 years old at the time, held a life estate in the Real Property; the Debtor, who was less than 62 years old at the time, and therefore ineligible for a reverse mortgage, held the remainder interest.5 One of the documents executed by Mrs. Nunez was the Reverse Mortgage. The Reverse Mortgage, unlike the other Loan Documents, was executed by both Mrs. Nunez and the Debtor, and defined Mrs. Nunez and the Debtor collectively as the "Borrower". Both the Debtor and Mrs. Nunez signed the Reverse Mortgage under a paragraph setting forth the agreement of the Borrower to be subject to the terms of the Reverse Mortgage.6 The Debtor's signature line was marked with her name and the word "Remainderman." Mrs. Nunez' signature line only identified her name.

Paragraph 9(a) of the Reverse Mortgage states that a "[l]ender 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".

Mrs. Nunez died on June 23, 2016. Prior to Mrs. Nunez' death, the Reverse Mortgage went into default because Mrs. Nunez got behind on paying the real estate taxes and insurance. RMS, as the Secured Creditor, filed a Complaint to foreclose the Reverse Mortgage. The Complaint was later amended to include Mrs. Nunez' death as an additional ground for default.

On August 30, 2017, the Debtor filed this chapter 13 bankruptcy case. The Debtor's Chapter 13 Plan7 (the "Plan") proposes to cure the taxes and insurance default, but doesn't otherwise include payments on account of the Reverse Mortgage, on the basis that the Reverse Mortgage doesn't require the payment of principal and interest. RMS objected to confirmation, arguing that the Debtor is not a Borrower under the Reverse Mortgage and therefore, the Debtor cannot "cure and maintain" the Reverse Mortgage under the Plan.

ANALYSIS

The Reverse Mortgage is apparently a widely used, if not universal, form. Consequently, there are cases all over the country that have addressed whether the reference to "Borrower" in a reverse mortgage includes everyone identified in the preamble as "Borrower" or only the "Borrower" as designated in other documents executed in connection with the reverse mortgage. Those cases do not all agree. RMS has asked me to follow those cases that hold that including a party as a "borrower" under the defined terms of a reverse mortgage, when such party does not execute the underlying promissory note or other loan documents, does not make that party a "borrower" for purposes of surviving ownership rights if the party who signs the note dies. Citing to Florida cases on contract construction, RMS urges me to look at all of the documents executed in connection with the Reverse Mortgage to ascertain the parties' intent that only Mrs. Nunez is the "Borrower".8 Those Loan Documents, RMS argues, makes clear that the "Borrower" in the Reverse Mortgage is only Mrs. Nunez notwithstanding what might otherwise appear to be the definition of "Borrower" in the Reverse Mortgage.

However, I do not agree with those cases upon which RMS has relied. Nor do I believe it is necessary or appropriate to look at the other Loan Documents to determine what "Borrower" means in the Reverse Mortgage. First, the Reverse Mortgage is unambiguous. The Reverse Mortgage makes clear that, for purposes of its terms, "Borrower" refers to both Mrs. Nunez and her daughter, the Debtor. The fact that "Borrower" is singular is of no moment. It is a defined term, and it is defined for purposes of the Reverse Mortgage as Mrs. Nunez and the Debtor. Even consideration of the other Loan Documents would not change the defined term of the Reverse Mortgage. While Florida case law certainly invites, and sometimes dictates, consideration of documents executed together as part of a contemporaneous transaction to determine the intent of the parties in connection with the agreement as a whole, none of those cases looks at documents to alter defined terms for the purposes of one particular document in the absence of an ambiguity. It is unfortunate that the Reverse Mortgage (both in this instance and in the apparent official form) uses the same defined term for those who are actually the mortgagors as is used for "borrower" in the other Loan Documents; however this does not modify the unambiguous defined term "Borrower" in the Reverse Mortgage.

Second, I am bound by the holding of the Florida Third District Court of Appeal in Smith v. Reverse Mortgage Solutions, 200 So.3d 221 (Fla. 3d DCA 2016). In Smith, the Third DCA held that a person may be "the borrower" for purposes of the rights and obligations under a reverse mortgage even if the person is not the actual borrower under the loan. "Based on the plain and unambiguous language of the mortgage—which was executed by both Mr. and Mrs. Smith—(i) both Mr. and Mrs. Smith were treated as the "Borrower" under the mortgage, and (ii) each borrower is protected from the foreclosure of the mortgage until both borrowers die." Id. at 226 (emphasis in the original). See also Edwards v. Reverse Mortgage Solutions, Inc., 187 So.3d 895 (Fla. 3d DCA 2016)9. The Smith court did not mention, let alone consider, the statutory rules cited by RMS, notwithstanding that the Third DCA has applied such rules of construction in its own decisions.10 See, e.g., MV Insurance Consultants, LLC v. NAFH National Bank, 87 So.3d 96 (Fla. 3rd DCA 2012). Because there is no contrary law in Florida, I must follow the Smith holding.11 Veale v. Citibank, F.S.B., 85 F.3d 577, 580 (11th Cir.1996) (When interpreting state law, "federal courts are bound by the rulings of the state's highest court. . . . If the state's highest court has not ruled on the issue, a federal court must look to the intermediate state appellate courts.") Id. (citations omitted).

RMS argues that Smith and Edwards are distinguishable because the party seeking to be recognized as the "Borrower" under the reverse mortgage in each case was the borrower's widow. RMS argues that the Third DCA in Smith reversed the trial court because the surviving party was the spouse of the decedent and "federal law relating to reverse mortgages defined the term "homeowner" as including the homeowner's spouse." However, that observation was a third alternative ground upon which the Third DCA reversed the lower court. Thus, because the operative language considered by the Smith court is identical to the language in the Reverse Mortgage, I am bound to follow its holding.12

Having found the language of the Reverse Mortgage is not ambiguous and that Smith therefore controls, I do not need to look past the four corners of the document. Nonetheless, it is instructive to review the law in effect at the time the Reverse Mortgage was executed in 2008. The version of the relevant regulation in effect at the time the Reverse Mortgage was executed — 24 CFR 206.27(c)(1)—stated that reverse mortgages would become due and payable "if a mortgagor dies and the property is not the principal residence of at least one surviving mortgagor. . .". 24 CFR 206.27(c)(1) was changed for mortgages executed on and after August 4, 2014, and now the word "mortgagor" in the regulation has been, in each instance, changed to "borrower". However, the Reverse Mortgage is subject to the 2008 version of the CFR. The only way the Reverse Mortgage can comply with the applicable law is to read the Reverse Mortgage as it is written, that is, the word "Borrower" applies to both mortgagors—the Debtor and her mother.13

Equally instructive is the language of ML 1997-15, referenced by RMS in its Memorandum of Law.14 The text of ML 1997-15 that immediately follows the language quoted in footnote 5 of this opinion states "[a] holder of a future interest does not execute the note or loan agreement and does not have the rights to loan proceeds of other mortgagors." In other words, the mortgagor—"borrower" for mortgage purposes only—cannot claim additional funds under any note executed in connection with a reverse mortgage, to the extent the note has not been fully funded, notwithstanding that the mortgagor is called the "borrower" under the reverse mortgage. But the mortgagor does not lose his or her home so long as the mortgagor complies with the covenants of the reverse mortgage, to which terms he or she has subjected himself or herself as a "borrower" under the reverse mortgage.15

The United States Supreme Court held in Johnson v. Home State Bank, 501 U.S. 78 (1991) that a debtor may treat a mortgage encumbering property of the debtor in a chapter 13 plan even if the debtor has no in personam liability because the secured lender has a claim against property of the debtor. There is no dispute that RMS has a claim against property of the Debtor, even if the Debtor does not have any in personam liability16,17 and even though the Debtor was not eligible at the time the Loan Documents were signed to be a borrower under the applicable reverse mortgage regulations.

Reverse mortgages were clearly designed to assist elderly borrowers but that laudable purpose does not override rules of construction or the Bankruptcy Code. Because the Debtor is the Borrower as defined in the Reverse Mortgage, she has the rights and the obligations of the "Borrower" with respect to the Reverse Mortgage. Consequently, the objection of RMS to confirmation is OVERRULED. As the Borrower, the Debtor is entitled to maintain the Reverse Mortgage by curing the defaults relating to taxes and insurance.

ORDERED