On August 9, 2023, the Second Department issued a decision in Wells Fargo Bank N.A. v. Carney, 2023 NY Slip Op. 04231, holding that a person who signed a mortgage is a borrower for purposes of RPAPL 1304 notice even if they did not sign the related note, explaining:
Proper service of RPAPL 1304 notice on the borrower or borrowers is a condition precedent to the commencement of a residential foreclosure action, and the plaintiff has the burden of establishing satisfaction of this condition. RPAPL 1304(1) provides that at least ninety days before a lender, an assignee or a mortgage loan servicer commences legal action against the borrower, including mortgage foreclosure, such lender, assignee or mortgage loan servicer shall give notice to the borrower. The notice must be sent by registered or certified mail and by first-class mail to the last known address of the borrower and to the premises at issue.
Here, it is undisputed that the plaintiff failed to serve Courtney 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. Here, the plaintiff conceded that it did not send the requisite notice to Courtney pursuant to RPAPL 1304. Accordingly, since service of RPAPL 1304 notices upon both borrowers was a condition precedent to commencement of the mortgage foreclosure action, and since the plaintiff failed to serve one of the borrowers, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them, and should have denied the plaintiff’s cross-motion, inter alia, for summary judgment on the complaint.
(Internal quotations and citations omitted).