WHO IS A BORROWER FOR PURPOSES OF RPAPL 1304

The facts: "On October 29, 2004, nonparty Solomon Forman borrowed the sum of $333,700 from nonparty Quicken Loans, Inc., and executed a promissory note evidencing the loan. As security for the obligation, Solomon Forman and his wife, the defendant Ann Forman (hereinafter the defendant), delivered a mortgage on certain real property located in Hauppauge (hereinafter the subject property) to nonparty Mortgage Electronic Registration Systems, Inc., acting as nominee for Quicken Loans, Inc. The subject property is a residential home which has been solely owned by the defendant since May 28, 2002. On March 18, 2006, Solomon Forman died."

Bank of N.Y. Mellon v Forman, 2019 NY Slip Op 07045, Decided on October 2, 2019, Appellate Division, Second Department:

"Where a loan is a home loan for the borrower's principal residence, the mortgage creditor contemplating a mortgage foreclosure action is required, pursuant to RPAPL 1304, to serve the borrower with notice of his or her default in a specified form at least 90 days prior to the commencement of the action (see RPAPL 1304[1], [2], [5]; Flagstar Bank, FSB v Jambelli, 140 AD3d 829, 830).

We agree with the defendant that under the circumstances of this case, she was a "borrower" for purposes of RPAPL 1304. 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 (see generally Computer Assoc. Intl., Inc. v U.S. Balloon Mfg. Co., Inc., 10 AD3d 699, 700).

Moreover, an RPAPL 1304 notice is a notice pursuant to the Home Equity Theft Prevention Act (Real Property Law § 265-a; hereinafter HETPA), the underlying purpose of which is "to afford greater protections to homeowners confronted with foreclosure" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95, 103). HETPA defines a "homeowner" as "any or all record title owners of the residential real property in foreclosure" (Real Property Law § 265-a[2][h]). The content of the RPAPL 1304 notice furthers the legislative intent "to provide a homeowner with information necessary . . . to preserve and protect home equity" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107 [internal quotation marks omitted]; see Real Property Law § 265-a[1][d]). The "manifest purpose [of the RPAPL 1304 notice] is to aid the homeowner in an attempt to avoid litigation" (Aurora Loan Servs., LLC v Weisblum, 85 AD3d at 107). Here, the defendant clearly is a homeowner, and in fact, she was the sole owner of the subject property.

Under these circumstances, where the defendant is referred to as a borrower in the mortgage instrument, and in light of the intent of the RPAPL 1304 notice, we find that the record is sufficient to establish that the defendant is a borrower for purposes of RPAPL 1304 (see generally Aurora Loan Servs., LLC v Weisblum, 85 AD3d 95).

"[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 establishing satisfaction of this condition" (id. at 106; see Flagstar Bank, FSB v Damaro, 145 AD3d 858, 860; Deutsche Bank Nat. Trust Co. v Spanos, 102 AD3d 909, 910)."