HSBC Bank USA, National Association v. DiBenedetti

Summary

The Appellate Division, Second Department, reversed a judgment of foreclosure and sale and vacated the portion of an order granting the mortgagee summary judgment upon renewal. The court held that Denis DiBenedetti qualified as a borrower under RPAPL 1304 because the mortgage identified him as a borrower, and that HSBC failed to establish strict compliance with the statute's notice requirements because additional material accompanied the 90-day notice and a single notice was jointly addressed to both defendants.

Holdings

1. The Supreme Court providently exercised its discretion in granting HSBC leave to renew its prior motion.
2. A person who did not sign the note is nevertheless a borrower within the meaning of RPAPL 1304 when the mortgage identifies that person as a borrower on its first page and beneath the person's signature.
3. HSBC failed to establish prima facie strict compliance with RPAPL 1304 because additional material was sent in the same envelope as the required 90-day notice and one notice was jointly addressed to both defendants.

Questions Presented

1. Whether the Supreme Court properly granted HSBC leave to renew its prior motion for summary judgment, to strike the defendants' answer, and for an order of reference.
2. Whether Denis DiBenedetti was a borrower subject to the notice requirements of RPAPL 1304 despite not signing the note.
3. Whether HSBC established strict compliance with RPAPL 1304 where additional material accompanied the 90-day notice and a single notice was jointly addressed to both defendants.

Disposition

reversed