Federal Deposit Insurance Corporation v. Avery Cashion, III
2013 U.S. App. LEXIS 12474
| 4th Cir. | 2013Background
- Avery Cashion appeals FDIC's district court judgment in favor of FDIC as receiver for The Bank of Asheville to recover deficiency on a promissory note.
- Note originated August 2006 for $2,000,000 and was modified/renewed several times through March 2010, with collateral including multiple notes.
- Bank filed state-court action in September 2010 alleging it held the Note, Cashion defaulted, and full payment due.
- FDIC substituted as receiver and moved for summary judgment, attaching a Martin affidavit about Bank records.
- Cashion opposed, arguing genuine issues (1) FDIC holder of the Note without original Note, (2) whether the Note had been cancelled or assigned, plus challenged admissibility of the 1099-C form.
- District court granted summary judgment after striking Cashion’s surreply and Chapman affidavit, leading to final judgment for FDIC for amount $2,111,427.12 plus interest.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FDIC is the holder of the Note. | Cashion argues genuine issue since original Note not produced. | FDIC shows copy plus records and successor rights; original not required under NC law. | No genuine issue; copy plus possession and statutory holder status suffice under NC law. |
| Whether the district court properly struck the surreply and Chapman affidavit. | Striking was improper; surreply/Chapman aid in proving 1099-C admissibility. | Surreply not authorized by rule; Chapman testimony not personal knowledge. | Not an abuse; district court did not err in striking and excluding Chapman affidavit. |
| Whether the 1099-C Form creates a genuine issue of material fact as to cancellation/assignment of the Note. | 1099-C constitutes prima facie evidence of discharge/assignment. | 1099-C is a tax reporting device, not proof of discharge; requires more context. | 1099-C alone does not create genuine issue; summary judgment proper. |
Key Cases Cited
- Dobson v. Substitute Tr. Servs., Inc., 212 N.C.App. 45 (2011) (photocopies may establish holder status; original not required if authentic copy)
- Liles v. Myers, 38 N.C.App. 525 (1978) (strict proof for holder status not mandatory when photocopy is authentic)
- Econo-Travel Motor Hotel Corp. v. Taylor, 301 N.C. 200 (1980) (evidence may prove liability; copies can suffice to show holder)
- Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (summary judgment standard; genuine issue requires specific facts)