BF Holdings I, Inc. v. South Oak Holding, Inc.

Appellate Division of the Supreme Court of New York

BF Holdings I, Inc. v. South Oak Holding, Inc.

251 A.D.2d 1, 673 N.Y.S.2d 645, 1998 N.Y. App. Div. LEXIS 6366

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 2, 1998

StatusPublished

Cited by2 cases

This text of 251 A.D.2d 1 (BF Holdings I, Inc. v. South Oak Holding, Inc.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

BF Holdings I, Inc. v. South Oak Holding, Inc., 251 A.D.2d 1, 673 N.Y.S.2d 645, 1998 N.Y. App. Div. LEXIS 6366 (N.Y. Ct. App. 1998).

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Opinion

—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about November 19, 1997, which, in a mortgage foreclosure action instituted by an assignee of the Federal Deposit Insurance Corporation, inter alia, denied defendant mortgagor’s motion for summary judgment dismissing the action on the ground of payment, and granted plaintiffs cross motion for summary judgment, unanimously affirmed, with costs.

The IAS Court correctly estopped defendant mortgagor from asserting the purported satisfaction issued by its lender, a failed bank, in the absence of proof that such satisfaction was approved by the lender’s board of directors and had been a continuously official record of the lender, as required by 12 USC § 1823 (e) (see, Federal Deposit Ins. Corp. v Central Wine & Liq., 187 AD2d 314, 315, citing Langley v Federal Deposit Ins. Corp., 484 US 86, and D’Oench, Duhme & Co. v Federal Deposit Ins. Corp., 315 US 447; ICC Bridgeport Ltd. Partnership v Primrose Dev. Corp., 221 AD2d 417). We would also note the absence of evidence of the filing of the satisfaction in accordance with the recording acts, and of canceled checks showing actual payment of the debt to the lender, a bank in which defendant guarantors, principals of the mortgagor, had heavily invested. Nor is there merit to defendants’ claim of champerty (Judiciary Law § 489), where the mortgage loan had already fallen into default and been accelerated before its assignment to plaintiff (see, Limpar Realty Corp. v Uswiss Realty Holding, 112 AD2d 834). We have considered defendants’ remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Milonas, Rosenberger, Nardelli and Williams, JJ.

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—Order, Supreme Court, New York County (Harold Tompkins, J.), entered on or about November 19, 1997, which, in a mortgage foreclosure action instituted by an assignee of the Federal Deposit Insurance Corporation, inter alia, denied defendant mortgagor’s motion for summary judgment dismissing the action on the ground of payment, and granted plaintiffs cross motion for summary judgment, unanimously affirmed, with costs.

The IAS Court correctly estopped defendant mortgagor from asserting the purported satisfaction issued by its lender, a failed bank, in the absence of proof that such satisfaction was approved by the lender’s board of directors and had been a continuously official record of the lender, as required by 12 USC § 1823 (e) (see, Federal Deposit Ins. Corp. v Central Wine & Liq., 187 AD2d 314, 315, citing Langley v Federal Deposit Ins. Corp., 484 US 86, and D’Oench, Duhme & Co. v Federal Deposit Ins. Corp., 315 US 447; ICC Bridgeport Ltd. Partnership v Primrose Dev. Corp., 221 AD2d 417). We would also note the absence of evidence of the filing of the satisfaction in accordance with the recording acts, and of canceled checks showing actual payment of the debt to the lender, a bank in which defendant guarantors, principals of the mortgagor, had heavily invested. Nor is there merit to defendants’ claim of champerty (Judiciary Law § 489), where the mortgage loan had already fallen into default and been accelerated before its assignment to plaintiff (see, Limpar Realty Corp. v Uswiss Realty Holding, 112 AD2d 834). We have considered defendants’ remaining arguments and find them to be without merit. Concur — Sullivan, J. P., Milonas, Rosenberger, Nardelli and Williams, JJ.

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Bluebook (online)

251 A.D.2d 1, 673 N.Y.S.2d 645, 1998 N.Y. App. Div. LEXIS 6366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bf-holdings-i-inc-v-south-oak-holding-inc-nyappdiv-1998.

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