“[P]roper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a foreclosure action, and the plaintiff has the burden of proving compliance. In a recent Appellate Division decision, the Court defined what was never defined within the statute: Who is a borrower?
In Bank of New York Mellon v. Forman, the defendant cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against her. The defendant argued, that the plaintiff failed to comply with the condition precedent to the commencement of this foreclosure action because the plaintiff did not serve her with the 90-day notice required by RPAPL 1304. The plaintiff did not dispute that it did not serve the 90-day notice upon the defendant. However, the plaintiff argued, that RPAPL 1304 applies only to borrowers, and that the defendant was not a borrower, as she had not signed the note.
The Court found that the mortgage instrument itself identified her as a “Borrower” and, in fact, under her signature was “Borrower” on the mortgage instrument. If, in fact, “borrower” is ambiguous, then it must be construed against the plaintiff who supplied the document at origination. Additionally, the legislative intent of the RPAPL 1304 notice is “to afford greater protections to homeowners confronted with foreclosure.” On the go forward, servicers should continue the most conservative approach to the parties receiving notices, and include all parties who may be considered a borrower on the note AND mortgage.
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