TD BANK, N.A., Plaintiff, v. SALVATORE MIRABELLA, Defendant.
No. COA11-1178.
Court of Appeals of North Carolina.
Filed: March 20, 2012.
Defendant appeals an order granting summary judgment in favor of plaintiff. For the following reasons, we reverse and remand for further proceedings consistent with this opinion.

I. Background
On 8 December 2010, plaintiff filed a complaint against defendant alleging “[t]hat the Defendant has failed, refused, and neglected to pay the amount due on” a promissory note (“Note”) of which “Plaintiff is the owner and holder[.]” Plaintiff specifically noted that it “has elected to bring suit on the Note without waiving its right to proceed later, if applicable, to foreclosure the Deed of Trust[.]” Plaintiff requested $204,333.91, the amount owed on the Note, plus interest and attorney’s fees. On 2 March 2011, defendant answered the complaint and denied that plaintiff is the owner and holder of the Note. On 24 June 2011, plaintiff moved for summary judgment. On 25 July 2011, the trial court entered an order granting summary judgment in favor of plaintiff. Defendant appeals.

II. Summary Judgment
The Note in our record is between defendant as borrower and Carolina First Bank as lender. The Note provides that “`You’ and `Your’ refer to the Lender.” The Note further provides that the borrower “promise[s] to pay you or your order, at your address, or at such other location as you may designate, the principal sum of $224,910.00 (Principal) plus interest from February 23, 2008 on the unpaid Principal balance until this Note matures or this obligation is accelerated.” Thus, defendant promised to pay Carolina First Bank or Carolina First Bank’s order.

Defendant contends that “the trial court erred in allowing plaintiff’s motion for summary judgment[,]” (original in all caps), because “TD Bank failed to show that it was the owner and holder of the promissory note upon which it has sued.”

Plaintiff argues that it now stands in the place of Carolina First Bank on the Note due to a merger between it and Carolina First Bank. However, neither the complaint nor any other documents in the record which were presented to the trial court reveal any evidence of a merger or explain why plaintiff is TD Bank instead of Carolina First Bank.

Plaintiff contends that this “Court can and should take judicial notice of the merger in this appeal, regardless of the record below” and directs this Court’s attention to various documents regarding the alleged merger, including documents which appear to have been filed with the Secretary of State of South Carolina. These documents were only provided in the appendix of plaintiff’s brief.

Plaintiff also argues that judicial notice is mandatory, as it has been “requested by a party[,]” and plaintiff has “supplied… the necessary information.” We do not consider plaintiff’s provision of the alleged merger documents as an appendix to its brief as supplying the necessary information under Rule 201. See id. Plaintiff had many options for properly filing its merger documents and yet failed to do so. Plaintiff could have filed an affidavit regarding the alleged merger with the trial court, presented the merger documents as exhibits before the trial court or included the documents in the record on appeal, as a supplement to the record or through a separate motion. Instead, plaintiff provided its only evidence of its alleged merger with First Carolina Bank, a merger which is not even mentioned in the complaint, through the appendix of its brief. Rule 9 of our Rules of Appellate Procedure provides that “[i]n appeals from the trial division of the General Court of Justice, review is solely upon the record on appeal, the verbatim transcript of proceedings, if one is designated, and any other items filed pursuant to this Rule 9.” N.C.R. App. P. 9. In addition, because plaintiff failed to present the merger documents before the trial court, defendant has not had the opportunity to respond fully to the documents included in the appendix to plaintiff’s brief and to the extent defendant has responded it has questioned the authenticity of plaintiff’s documents. We will therefore not take judicial notice of the alleged merger or its effect upon the transaction in this case.

While in certain situations, taking judicial notice of a bank merger may be appropriate, we do not deem it so in this case, where at the summary judgment stage no evidence of the merger was forecast before the trial court, plaintiff failed to properly present evidence of a merger with this Court, and defendant has specifically contested the authenticity of the merger documents provided in the appendix to plaintiff’s brief. However, we do believe that the information presented by plaintiff raises a genuine issue of material fact. We therefore reverse the trial court’s order granting summary judgment and remand for further proceedings. See Mitchell at ___, 705 S.E.2d at 764.

III. Conclusion

For the foregoing reasons, we reverse and remand for further proceedings consistent with this opinion. As we are reversing and remanding this case, we need not address defendant’s other arguments on appeal.


Full opinion below…



T.D. Bank, N.A. v. Mirabella