FDIC v. Cashion

FDIC v. Cashion

Opinion

 [*171]  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  [**2] and whether the note had been cancelled 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.

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 "demand[ed] that the [Bank] produce the original document that is  [**3] 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]  the Bank, and was correct and true. (J.A. 31.)

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