The opinion
Lynch, J.
(dissenting). We respectfully dissent. In our view, the documentation underlying this loan transaction, all of which was prepared by plaintiff, is so internally conflicted that plaintiff should be precluded, as a matter of law, from treating defendant Anne C. Fullam Goeke (hereinafter defendant) as a non-borrower for purposes of triggering a foreclosure action. As the majority points out, the note identifies defendant’s husband as the borrower, while there is language in the introductory sentence of the mortgage identifying both defendant and her husband as the borrower. Significantly, that same sentence mischaracterizes defendant’s interest in the property as that of a “Remainder” interest. The signature line on the mortgage also identified defendant’s interest as “Remainderman.” In fact, defendant and her husband acquired deed title from her mother in 2004, taking ownership as tenants by the entirety. By deed dated June 3, 2008, defendant’s husband transferred his ownership interest to defendant, “excepting and reserving a life use.” Consequently, when the loan transaction was completed on June 12, 2008, defendant actually held full deed title in the property, subject to her husband’s “life use.” This is not, as characterized in the loan documents by plaintiff, a “remainder” interest. Defendant’s ownership interest is significant because she was too young to qualify for a reverse mortgage. And yet, *1242 as part of this transaction, defendant was also required to sign in advance an “Ownership Interest Certification” advising defendant that, as a non-eligible owner, she would be required to divest her ownership interest. The document further cautioned that “[i]f you continue to reside in the property after divestiture and the borrower predeceases you . . . the reverse mortgage will become due and payable” (emphasis added). At the same time, defendant also signed a “Notice to Non-Borrowing Spouse” advising that, if she was “currently not a vested titleholder,” the reverse mortgage would become due and payable if the borrowing spouse predeceased her. The operative point here is that defendant never divested her ownership interest and continues to hold full title in this property.
Having mischaracterized defendant’s ownership interest in the transaction documents, identified defendant as a borrower in the mortgage, as well as the HUD-1 settlement statement, and completed the loan transaction while defendant retained ownership, plaintiff’s own documentation precludes plaintiff from declaring the mortgage due and payable. As such, we need not look to extrinsic evidence for resolution (see Greenfield v Philles Records, 98 NY2d 562, 569-570 [2002]; Hartford Acc. & Indem. Co. v Wesolowski, 33 NY2d 169, 171-172 [1973]). We would affirm Supreme Court’s order dismissing the complaint against defendant.