A mortgagor may tender payment of the balance due on the mortgage as long as it is unconditional. If the mortgagee wrongfully refuses to accept the tender, additional interest may be forfeited. The court has discretion to determine whether interest is recoverable. A guarantor of the mortgage debt may make a tender and demand assignment of the mortgage as a subrogee of the debtor. However, tender is not accomplished by a mere offer to pay.
Actual payment is required.
Finally, where a mortgage provides for legal costs or reasonable attorneys fees, it will be enforced. But, there must be an express provision for payment of attorneys' fees in the mortgage. A provision solely in the note will not accomplish the mortgagee's objective. A provision in the note for the payment of legal fees simply does not create an obligation to pay counsel fees incurred in an action to foreclose on the mortgage secured by that note. Application to Motion and Cross-Motion MS, the assignee, wants this court to confirm the Amended Referee's Report.