Brief Fact Summary. Erhal Holding Corp., (Defendant), moves for a declaration that Ms. Basile, (Plaintiff), waived her right of redemption when she executed a mortgage and deed to Defendant in lieu of foreclosure. The Supreme Court of New York granted Defendant’s motion and Plaintiff appeals.
Synopsis of Rule of Law. A deed that is executed as security for a loan of money will be treated as a mortgage. A borrower has an unwaivable right to redeem the property upon payment of the loan.
It is an established doctrine that a court of equity will treat a deed, absolute in form, as a mortgage, when it is executed as security for a loan of money.View Full Point of Law
Issue. Whether Plaintiff waived her right of redemption.
Held. No. Plaintiff cannot waive her right of redemption.
Discussion. It is clear that the deed was executed with the intent it be security for Plaintiff’s $101, 303.59 debt to Defendant. As such it was a mortgage and Plaintiff could not waive the right to redeem the property.