Federal Deposit Insurance Corporation v. Avery Cashion, III

720 F.3d 169, 2013 WL 3037269, 2013 U.S. App. LEXIS 12474
CourtCourt of Appeals for the Fourth Circuit
DecidedJune 19, 2013
Docket12-1588
StatusPublished
Cited by301 cases

This text of 720 F.3d 169 (Federal Deposit Insurance Corporation v. Avery Cashion, III) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Federal Deposit Insurance Corporation v. Avery Cashion, III, 720 F.3d 169, 2013 WL 3037269, 2013 U.S. App. LEXIS 12474 (4th Cir. 2013).

Opinions

Affirmed by published opinion. Judge AGEE wrote the majority opinion, in which Judge MOTZ joined. Judge KING wrote a dissenting opinion.

AGEE, Circuit Judge:

Avery T. Cashion, III, appeals from the district court’s judgment in favor of the Federal Deposit Insurance Corporation (“FDIC”), acting as receiver for The Bank of Asheville (“the Bank”), in this action by the FDIC to recover the deficiency owed on a promissory note executed by Cashion and payable to the Bank. Cashion contends that the district court erred in granting summary judgment to the FDIC because genuine issues of material fact exist as to whether the FDIC was the holder of the note and whether the note had been can-celled or assigned. He also asserts the district court abused its discretion in striking his surreply brief opposing summary judgment and an affidavit attached to it. For the reasons set forth below, we affirm the judgment of the district court.

I.

In August 2006, Cashion signed a promissory note (“Note”) payable to the Bank in the original principal amount of $2,000,000.00. Through March 2010, the Bank and Cashion entered into a number of modifications and renewals of the Note. The Note was originally secured by three other promissory notes, and a fourth promissory note was added as additional collateral in 2010.

In September 2010, the. Bank filed an action in North Carolina state court alleging that it was the holder of the Note, that Cashion had defaulted by failing to make the payments due on the Note, and that it was entitled to full payment plus interest pursuant to the Note’s terms. Cashion’s Answer admitted “a copy of a document, which speaks for itself, is attached to [the Bank’s] Complaint,” and that the signature on that document “appears to be the signature of Mr. Cashion,” but “demanded] that the [Bank] produce the original document that is described as [the Note].” (J.A. 17-19.)

Before the case proceeded further, the Bank closed and the FDIC was named receiver and liquidating agent. After the FDIC was substituted as the real party in interest in the state court, it removed the case to the United States District Court for the Western District of North Carolina.1 The FDIC then moved for summary judgment, asserting that it had set forth a prima facie case to recover proceeds on the Note and that no genuine issues of material fact precluded judgment as a matter of law. It attached to the motion an affidavit from Sherry M. Martin, a “Resolutions and Receiverships Specialist” for the FDIC who was “familiar with the books and records of’ the FDIC and the Bank. Martin stated in the affidavit that the information alleged in the Complaint came from records and employees of [172]*172the Bank, and was correct and true. (J.A. 31.)

Cashion opposed the motion, asserting that two genuine issues of material fact existed: first, whether the FDIC satisfied its burden of proving that it was the holder of the Note in light of its failure to produce the original Note, and second, whether the Note had been cancelled or assigned. To support the latter argument, Cashion included an affidavit asserting the Note had been cancelled and attaching a copy of the Internal Revenue Service (“IRS”) Form 1099-C that he alleged he received from the Bank in early 2010 (“the 1099-C Form”) as the sole basis for his affidavit.2 The 1099-C Form, labeled “Cancellation of Debt” in pre-printed text, had been filled out by hand and lists the Bank of Asheville as the creditor and Cashion as the debtor, references the Note’s account number, reflects the “Date canceled” as “6/23/2010” and the “Amount of debt canceled” as $1,993,222.20. The “Debt description” box states: “Assignment of Promissory Notes.” (J.A.42.)

The FDIC attached a supplemental affidavit from Martin to its response in support of summary judgment in which she reiterated her

familiarfity] with the books and records acquired by the [FDIC] when it was appointed Receiver for [the Bank].... The books and records in question were made at or near the time of the matters therein recorded and were kept in the course of [the Bank’s] regularly conducted business activity, the regular practice of which was to keep such books and records.

(J.A. 81.) Martin’s supplemental affidavit also stated that the FDIC had possession of the original Note, that the copy attached to the Complaint was “true and correct,” that the Note had not been transferred or assigned to a third party, that the Note had not been paid by Cashion or a third party, and that the Note had not been cancelled or Cashion “otherwise absolved” of liability. Martin also stated that based on the Bank’s records in the FDIC’s possession, the 1099-C Form “appear[ed] to have been sent to Mr. Cashion by [the Bank] prior to the” receivership. (J.A. 82.) Martin also indicated that

[t]he most likely explanation for the debt cancellation referred to in hand-writing on the IRS 1099-C Form ... is that “Assignment of Promissory Notes” refers to the collateral securing the Note.... The fact that [the Bank] may have issued an IRS 1099-C Form concerning the collateral that secured the Note does not mean that [the Bank] cancelled [Cashion’s] debt to [the Bank] reflected by the Note.

(J.A. 82.) Based on Martin’s supplemental affidavit, the FDIC argued that it was the holder of the Note and was not required to produce the original Note in order to prove that status under North Carolina law because a true copy was sufficient. In addition, the FDIC contended that the 1099-C Form was inadmissible hearsay and that Cashion had not “properly authenticated” the form for admission into evidence under any of the exceptions to the rule against hearsay. The FDIC also posited that the 1099-C Form did not refer to the Note, but to the collateral for the Note. Alternatively, the FDIC asserted that “at most,” the 1099-C Form indi[173]*173cated the Bank’s intent that the Note be cancelled, but was not competent evidence of actual cancellation.

Cashion did not move to strike Martin’s supplemental affidavit, but instead filed an additional notice of filing in opposition to summary judgment (hereinafter “surre-ply”) countering the FDIC’s arguments regarding the admissibility and import of the 1099-C Form. Cashion attached to the sur-reply an affidavit from his business partner, Raymond M. Chapman, in which Chapman described the 1099-C Form and then gave his viewpoint as to what Cash-ion’s receipt of the 1099-C Form from the Bank likely meant (cancellation of the Note).

The FDIC moved to strike the surreply and Chapman affidavit, noting that “[njothing in the [cjourt’s Pretrial Order and Case Management Plan authorized] the filing of a surreply,” and Cashion had not sought leave of court to authorize such a filing. (J.A. 127.) It further asserted that a surreply was not appropriate under the circumstances given that its reply had not raised any new issues. In addition, the FDIC argued that the Chapman affidavit contained opinion testimony from a person who was not an expert witness rather than information based on Chapman’s personal knowledge. For that reason, the FDIC urged the district court to strike or disregard the affidavit.3

For reasons summarized in context below, the district court granted the FDIC’s motion to strike the surreply and Chapman affidavit, denied Cashion’s motion for leave to file those items, and then awarded summary judgment to the FDIC.

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Bluebook (online)
720 F.3d 169, 2013 WL 3037269, 2013 U.S. App. LEXIS 12474, Counsel Stack Legal Research, https://law.counselstack.com/opinion/federal-deposit-insurance-corporation-v-avery-cashion-iii-ca4-2013.