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DEFENDANT IN THIS FORECLOSURE ACTION WAS A ‘BORROWER’ AND THEREFORE WAS ENTITLED TO THE 90-DAY NOTICE REQUIRED BY RPAPL 1304; THE BANK HAD ARGUED SHE WAS NOT A BORROWER BECAUSE SHE DID NOT SIGN THE NOTE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined defendant in this foreclosure action was a “borrower” within the meaning of RPAPL 1304 and therefore she was entitled to the required 90-day notice, which she did not receive. That bank argued that she was not a borrower because only her deceased husband signed the note. However she was named on the mortgage and she signed the mortgage:

While RPAPL 1304 provides that the notice shall be sent to the “borrower,” that term is not defined in the statute (see RPAPL 1304). It is undisputed that only the defendant’s deceased husband, Solomon Forman, is identified as a “borrower” in the note which is secured by the mortgage. That is not determinative in this case. In the mortgage instrument, the defendant is referred to as a borrower. On the first page of the mortgage instrument, under the heading entitled “Words Used Often in this Document,” the defendant is identified, along with her husband, as ” Borrower.'” The defendant is also designated as “Borrower” under her signature on the signature page of the mortgage instrument. While the plaintiff contends that this standard mortgage form mischaracterizes the defendant as a borrower, any ambiguities in the language of the document must be construed against the plaintiff, as the plaintiff is the party who supplied the document … . Bank of N.Y. Mellon v Forman, 2019 NY Slip Op 07045, Second Dept 10-2-19

 

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