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A TITLE HOLDER WHO DID NOT SIGN THE NOTE BUT DID SIGN THE MORTGAGE IS ENTITLED TO THE RPAPL 1304 NOTICE OF FORECLOSURE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined a defendant (Courtney) who did not sign the note but did sign the mortgage was a “borrower” entitled to notice of the foreclosure pursuant to RPAPL 1304:

… [I]t is undisputed that the plaintiff failed to serve Courtney [defendant] with notice pursuant to RPAPL 1304, and, contrary to the plaintiff’s contention, he was entitled to such notice as a “borrower” within the meaning of that statute. Although Courtney did not sign the note, both of the defendants were title owners of the subject property and each executed the mortgage as a “borrower.” “Where, as here, a homeowner defendant is referred to as a ‘borrower’ in the mortgage instrument and, in that capacity, agrees to pay amounts due under the note, that defendant is a ‘borrower’ for the purposes of RPAPL 1304, notwithstanding . . . any ambiguity created by a provision in the mortgage instrument to the effect that parties who did not sign the underlying note are not personally obligated to pay the sums secured” … . Since Courtney “signed the mortgage as a ‘borrower’ and, in that capacity, agreed to pay the amounts due under the note, [he] was entitled to . . . notice pursuant to RPAPL 1304” … . Wells Fargo Bank N.A. v Carney, 2023 NY Slip Op 04231, Second Dept 8-9-23

Practice Point: A title owner who does not sign the note but signs the mortgage is a “borrower” entitled to notice of the foreclosure.

 

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IN THIS FORECLOSURE ACTION, A HEARING SHOULD HAVE BEEN HELD TO DETERMINE IF... THE DEFENDANT REHABILITATION FACILITY DID NOT PROVE PLAINTIFF’S DECEDENT...