BF Holdings I, Inc., Respondent, v. South Oak Holding, Inc., et al., Appellants, et al., Defendants

First Department, June, 1998 (June 2, 1998) BF Holdings I, Inc., Respondent, v South Oak Holding, Inc., et al., Appellants, et al., Defendants. [673 NYS2d 645] [MAJORITY] —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.