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AMERICAN SAV. BANK v. SALESKI DEV.

February 3, 1993

AMERICAN SAVINGS BANK, Plaintiff,
v.
SALESKI DEVELOPMENT, INC., CHARLES G. SALESKI, JR., ARCHITECTURAL BUILDING AGENTS, INC., MARINO INDUSTRIES CORP., PEOPLE OF THE STATES OF NEW YORK, and "JOHN ONE" through "JOHN TEN", the last ten names being fictitious and unknown to the Plaintiff, the persons or parties intended being the tenants, if any, having or claiming an interest in or lien upon the premises described in the Complaint, Defendants.



The opinion of the court was delivered by: CHARLES L. BRIEANT

 Brieant, Chief Judge

 This action was commenced by American Savings Bank on or about December 9, 1991 in New York State Supreme Court, County of Westchester, to foreclose a Mortgage on certain real property known as 23-15 Spring Street located in the Village of Ossining, the County of Westchester and the State of New York. The Mortgage was made by defendant Saleski Development, Inc. to American Savings Bank pursuant to the terms of a Consolidation and Extension Agreement dated June 20, 1990 and to secure a Replacement Mortgage Note in the amount of One Million and One Hundred Thousand Dollars ($ 1,100,000.00). See Doc. No. 8, Ex. A. Charles G. Saleski, Jr., and Architectural Building Agents, Inc. are named as defendants since they guaranteed the Note.

 On June 12, 1992, Derrick D. Cephas, as Superintendent of Banks of the State of New York Banking Department, took possession of the business and property of American Savings Bank and appointed the Federal Deposit Insurance Corporation as receiver of the Bank. See Doc. No. 1. By petition dated September 10, 1992, the Federal Deposit Insurance Corporation, as receiver of American Savings Bank, removed this action from New York State Supreme Court pursuant to Section 1819(b)(2)(B) of Title 12, and Sections 1441 and 1446 of Title 28 of the United States Code.

 At the time of the removal of this action to federal Court, the following motions were pending in the state court: (1) a motion for summary judgment of foreclosure dated March 26, 1992; (2) a motion for fees and disbursements by the original temporary Receiver, Guy T. Parisi dated May 18, 1992; *fn1" and (3) an Order to Show Cause dated June 5, 1992 directing the tenants, Bauer Optical Export Corp., Westchester County Fuel Oil, Inc., Home Designs, Inc., and Architectural Building Agents, Inc., to attorn to the court appointed Temporary Receiver, Michael Santangelo.

 On October 26, 1992 and November 17, 1992, this Court heard oral argument. At the conclusion of the oral argument on November 17, 1992, the Court: (1) granted plaintiff's motion to substitute the Federal Deposit Insurance Corporation, in its capacity as Receiver of the American Savings Bank, for plaintiff in the case caption and to replace the fictitious tenant names with the actual names of the building tenants; (2) directed counsel to settle an order on notice with regard to the Order to Show Cause to attorn to the Receiver; *fn2" and (3) reserved decision on the motion for summary judgment and the motion of the temporary receiver for fees and disbursement. See Nov. Tr. at 28, 29. The undecided motions were marked fully submitted on December 3, 1992, the date of the last submission by counsel and, on January 11, 1993, this Court signed an Order directing the tenants to attorn to the receiver. See Doc. No. 28.

 Plaintiff denies that such an agreement was made and has submitted the affidavit of Tony Shelton, a Supervisory Liquidations Specialist of the Federal Deposit Insurance Corporation. In his affidavit, Mr. Shelton explained that "a search has been performed of the books and records of AMERICAN SAVINGS BANK. . . . No written documents signed by AMERICAN SAVINGS BANK or SALESKI DEVELOPMENT, INC. were found which concerned a purported agreement to modify the payment provisions of the replacement mortgage note executed by SALESKI DEVELOPMENT, INC. on June 20, 1990 and delivered to AMERICAN SAVINGS BANK and/or the consolidation agreement by AMERICAN SAVINGS BANK and SALESKI DEVELOPMENT, INC. on June 20, 1990." See Doc. No. 24, PP 2-3. However, annexed to the Shelton Affidavit are three documents which were found in the books and record turned over to the F.D.I.C. by American Savings Bank that concern the alleged payout agreement.

 An internal memorandum written by a bank employee, Lynn H. Sauro, to the Loan Committee dated October 11, 1990, acknowledges that American Savings Bank at least considered modifying Mr. Saleski's monthly payments for a period of six months. The memorandum states in relevant part:

 I am suggesting Saleski's monthly payment should be decreased to $ 6,000 monthly for the next six months, at which time the note will return to its original terms. The accrued unpaid interest which will total approximately $ 27,000 will be converted to a twelve month term note at 2 % over prime floating. The present loan rate is 1 1/2 over prime but should be increased to 2% over prime during the six month deferment period to partially offset the increased risk.

 See Doc. No. 24, Ex. A.

 Excerpts from unsigned Loan Committee Minutes dated October 12, 1990 and October 25, 1990 state that the Loan Committee unanimously approved Ms. Sauro's proposed modification on the condition that Mr. Charles G. Saleski, Jr. obtain a second mortgage on his personal residence. There is no indication that Mr. Saleski ever satisfied this condition, but both American Savings Bank and Saleski Development, Inc. agree that Saleski Development Inc. made and the bank accepted the reduced payments during the 6 month period between November, 1990 and April, 1991. See Doc. No. 8, Edwards Aff., P 22-24: Doc. No. 8, Saleski Aff., 2-3; Doc. No. 8, Shelton Aff., P 6; Doc. No. 24, July 8, 1991 Note to File ("Saleski's mortgage had been restructured for six month period which ended in April.").

 Nonetheless, plaintiff maintains that Section 1823(e) of Title 12, 12 U.S.C. § 1823 (e), and the rationale of D'Oench, Duhme & Co. v. Federal Deposit Insurance Corporation, 315 U.S. 447, 86 L. Ed. 956, 62 S. Ct. 676 (1942), preclude the Saleski defendants from asserting that the terms of the Mortgage and Note were modified by oral agreement between American Savings Bank and the Saleski defendants. Under Section 1823(e), a debtor may not attempt to avoid an obligation to the FDIC by claiming that the insolvent financial institution had entered into an oral modification agreement prior to the acquisition of the asset by the FDIC unless the agreement is memorialized by a writing. 12 U.S.C. § 1823(e).

 As Justice Scalia explained in Langley v. Federal Deposit Insurance Corporation, 484 U.S. 86, 98 L. Ed. 2d 340, 108 S. Ct. 396 (1987), Section "1823(e) is meant to ensure more than just the FDIC's ability to rely on bank records at the time of an examination or acquisition. The statutory requirements that an agreement be approved by the bank's board or loan committee and filed contemporaneously in the bank's records assure prudent consideration of the loan before it is made, and protect against collusive ...


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