FDIC v. Cashion, III
Justia.com Opinion Summary: The FDIC, acting receiver for the Bank, filed an action to recover the deficiency owed on a promissory note executed by defendant and payable to the bank. On appeal, defendant challenged the district court's judgment in favor of the FDIC. The court concluded that the district court did not err in determining that no genuine issue of material fact existed as to the FDIC's status as holder of the Note; the district court did not abuse its discretion in granting the motion to strike defendant's surreply and an affidavit; the court concluded that filing a Form 1099-C was a creditor's required means of satisfying a reporting obligation to the IRS, not a means of accomplishing an actual discharge of debt, nor is it required only where an actual discharge had already occurred; and, in this case, the district court did not err in granting the FDIC's motion for summary judgment because defendant had not come forward with evidence that created a genuine issue of material as to whether the Note had been cancelled or assigned. Accordingly, the court affirmed the judgment.
Receive FREE Daily Opinion Summaries by Email
Receive FREE Daily Opinion Summaries by Email
PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1588 FEDERAL DEPOSIT INSURANCE CORPORATION, as Receiver for The Bank of Asheville, Plaintiff - Appellee, v. AVERY T. CASHION, III, Defendant - Appellant. Appeal from the United States District Court for the Western District of North Carolina, at Asheville. Martin K. Reidinger, District Judge. (1:11-cv-00072-MR-DLH) Argued: March 19, 2013 Decided: June 19, 2013 Before MOTZ, KING, and AGEE, Circuit Judges. Affirmed by published opinion. opinion, in which Judge Motz dissenting opinion. Judge Agee wrote the majority joined. Judge King wrote a ARGUED: Edward Louis Bleynat, Jr., FERIKES & BLEYNAT, PLLC, Asheville, North Carolina, for Appellant. Esther Elizabeth Manheimer, VAN WINKLE, BUCK, WALL, STARNES & DAVIS, PA, Asheville, North Carolina, for Appellee. ON BRIEF: Lynn D. Moffa, VAN WINKLE, BUCK, WALL, STARNES & DAVIS, PA, Asheville, North Carolina, for Appellee. AGEE, Circuit Judge: Avery T. Cashion, III, appeals from the district courtâÄôs judgment in favor of the Federal Deposit Insurance Corporation (âÄúFDICâÄĚ), acting as receiver for The Bank of Asheville (âÄúthe BankâÄĚ), 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 cancelled or assigned. He also in asserts the district court abused its discretion 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 (âÄúNoteâÄĚ) payable to the $2,000,000.00. Bank in the original principal amount of 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. 2 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 NoteâÄôs terms. CashionâÄôs Answer admitted âÄúa copy of a document, which speaks for itself, is attached to [the BankâÄôs] Complaint,âÄĚ and that the signature on that document âÄúappears to be the signature of Mr. Cashion,âÄĚ but âÄúdemand[ed] that the [Bank] produce the original document that is described as [the Note].âÄĚ (J.A. 17-19.) Before the case proceeded further, the Bank closed and the FDIC was named receiver and liquidating agent. was substituted as the real party in interest After the FDIC 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 âÄúResolutions and Receiverships SpecialistâÄĚ for the FDIC who was 1 Federal courts have jurisdiction over all civil suits âÄúto which the [FDIC], in any capacity, is a party,âÄĚ and the FDIC is authorized to remove actions pending in state court to âÄúthe appropriate United States district courtâÄĚ if the FDIC is substituted as a party. 12 U.S.C. Â§ 1819(b)(2)(A)-(B). 3 âÄúfamiliar with the books and records ofâÄĚ the FDIC and the Bank. Martin stated in the affidavit that the information alleged in the Complaint came from records and employees of the Bank, and was correct and true. Cashion issues of opposed material (J.A. 31.) the fact motion, asserting existed: first, that two whether genuine 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. support the latter argument, Cashion included an To affidavit asserting the Note had been cancelled and attaching a copy of the Internal Revenue Service (âÄúIRSâÄĚ) Form 1099-C that he alleged he received from the Bank in early 2010 (âÄúthe 1099-C FormâÄĚ) as the sole basis for his affidavit. 2 The 1099-C Form, labeled âÄúCancellation of DebtâÄĚ 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 NoteâÄôs account number, reflects the âÄúDate canceledâÄĚ as âÄú6/23/2010âÄĚ and the âÄúAmount of 2 Cashion attached copies of two different Form 1099-Cs he claimed he received from the Bank, but only one of them lists the same account number as the Note. While Cashion continues to refer to both forms on appeal, our analysis considers only the Form 1099-C bearing the NoteâÄôs account number. On its face, the other form does not appear to relate to the Note, and Cashion did not introduce any evidence suggesting that it in fact does. 4 debt canceledâÄĚ as $1,993,222.20. The âÄúDebt descriptionâÄĚ box states: âÄúAssignment of Promissory Notes.âÄĚ (J.A. 42.) The FDIC attached a supplemental affidavit from Martin to its response in support of summary judgment in which she reiterated her familiar[ity] 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 BankâÄôs] regularly conducted business activity, the regular practice of which was to keep such books and records. (J.A. 81.) MartinâÄôs supplemental affidavit also stated that the FDIC had possession of the original Note, that the copy attached to the Complaint was âÄútrue and correct,âÄĚ 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 âÄúotherwise absolvedâÄĚ of liability. Martin also stated that based on the BankâÄôs records in the FDICâÄôs possession, the 1099-C Form âÄúappear[ed] to have been sent to Mr. Cashion by [the Bank] prior to theâÄĚ receivership. 82.) (J.A. 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 âÄúAssignment of Promissory NotesâÄĚ 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 [CashionâÄôs] debt to [the Bank] reflected by the Note. 5 (J.A. 82.) Based on MartinâÄôs 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 addition, the inadmissible law because FDIC a true contended hearsay and copy that that was the Cashion sufficient. 1099-C had In Form not was âÄúproperly authenticatedâÄĚ 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 âÄúat most,âÄĚ the 1099-C Form indicated the BankâÄôs intent that the Note be cancelled, but was not competent evidence of actual cancellation. Cashion did not move to strike MartinâÄôs supplemental affidavit, but instead filed an additional notice of filing in opposition to summary judgment (hereinafter âÄúsurreplyâÄĚ) countering the FDICâÄôs arguments regarding the admissibility and import of the 1099-C Form. affidavit which from Chapman his Cashion attached to the surreply an business described the partner, 1099-C Raymond Form and M. Chapman, then gave in his viewpoint as to what CashionâÄôs receipt of the 1099-C Form from the Bank likely meant (cancellation of the Note). The affidavit, FDIC moved noting that to strike âÄú[n]othing 6 the in surreply the and Chapman [c]ourtâÄôs Pretrial Order and Case surreply,âÄĚ and Management Cashion authorize such a filing. Plan had authorize[d] not sought (J.A. 127.) the leave filing of of court a to It further asserted that a surreply was not appropriate under the circumstances given that its reply had not raised any new issues. FDIC argued that the Chapman affidavit In addition, the contained opinion testimony from a person who was not an expert witness rather than information based on ChapmanâÄôs 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 FDICâÄôs motion to strike the surreply and Chapman affidavit, denied items, then and CashionâÄôs awarded motion summary for leave judgment to to file those the FDIC. The district court entered final judgment in favor of the FDIC in the amount of âÄú$2,111,427.12, together with interest at the rate of $373.73 per day from and after September 2, 2010.âÄĚ (J.A. 290.) Cashion noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C. Â§ 1291. 3 After the FDICâÄôs motion to strike was filed, Cashion filed a motion requesting the district court grant him leave to file the surreply. Cashion asserted that his filing of the surreply was appropriate given the âÄúnewâÄĚ issues surrounding the 1099-C Form that he contended were raised for the first time in the FDICâÄôs reply brief. 7 II. Cashion raises three issues on appeal: (1) whether the district court erred in granting summary judgment to the FDIC because a genuine issue of material fact exists as to whether the FDIC is the holder of the Note; (2) whether the district court abused its discretion in granting the FDICâÄôs motion to strike the surreply and ChapmanâÄôs affidavit; and (3) whether the district court erred in granting summary judgment to the FDIC because a genuine issue of material fact exists as to whether the Note has been cancelled or assigned. We review an award of summary judgment de novo. Adams v. Trs. of the Univ. of N.C.-Wilmington, 640 F.3d 550, 556 (4th Cir. 2011). genuine Summary judgment is appropriate if âÄúthere is no dispute as to any material fact and entitled to judgment as a matter of law.âÄĚ 56(a). the movant is Fed. R. Civ. Pro. In considering the matter, we construe the evidence in the light most favorable to the non-moving partyâÄĒhere, CashionâÄĒ and draw all reasonable inferences in his favor. See Adams, 640 F.3d at 556. We review the district courtâÄôs evidentiary and scheduling decisions for abuse of discretion. 580, 591 (4th evidentiary Cir. decisions 2011) are See Noel v. Artson, 641 F.3d (stating reviewed that for a abuse district of courtâÄôs discretion); Cray CommcâÄôns, Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 8 396 (4th Cir. 1994) (stating the district courtâÄôs decisions regarding briefing and hearing on summary judgment motions are reviewed for abuse of discretion). A. Consistent with the NoteâÄôs governing law provision, we look to North Carolina law to determine whether the FDIC established that it is negotiable the âÄúholderâÄĚ instrument Stat. Â§ 25-3-301. of is the entitled Note. to The enforce âÄúholderâÄĚ it. N.C. of a Gen. A âÄúholderâÄĚ is the âÄúindividual, corporation, . . . or any other legal or commercial entity,âÄĚ N.C. Gen. Stat. Â§ 25-1-201(b)(27), âÄúin possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession.âÄĚ N.C. Gen. Stat. Â§ 25-1-201(b)(21). âÄúWhen signatures are admitted or established, production of the instrument entitles defendant establishes a holder a to defense.âÄĚ recover L. on Harvey it & unless Son Co. the v. Jarman, 333 S.E.2d 47, 52 (N.C. Ct. App. 1985) (quoting former N.C. Gen. Stat. Â§ 25-3-307(2), recodified using similar language at N.C. Gen. Stat. Â§ 25-3-308). The district court rejected CashionâÄôs contention that the FDIC had not shown that it is the holder of the Note because it failed to produce the original Note despite CashionâÄôs âÄúdemandâÄĚ in his Answer that it do so. Relying on Dobson v. Substitute 9 Tr. Servs., Inc., 711 S.E.2d 728 (N.C. Ct. App. 2011), and Liles v. Myers, 248 S.E.2d 385 (N.C. Ct. App. 1978), the district court concluded that âÄúproduction of the original Note is not the only manner in which holder status can be provedâÄĚ under North Carolina law. (J.A. 277.) The district court observed that the FDIC had proffered evidence that the Bank was the holder, that the FDIC succeeded to all rights of the Bank when it was appointed as the BankâÄôs receiver, and that a true and accurate copy of the Note was in the record. In addition, the district court observed that Cashion did not dispute the accuracy of the copy but instead simply âÄúmade a âÄėstrict demandâÄô for production of the original Note in his Answer.âÄĚ 4 On appeal, Cashion contends (J.A. 277.) the district court erred because the FDIC had not satisfied its burden of proving, under North Carolina law, that it was the holder of the Note due to the failure to produce the original CashionâÄôs demand for âÄústrict proof.âÄĚ points to Liles as establishing a Note in response (Opening Br. 8.) partyâÄôs right to Cashion under North Carolina law to demand such strict proof, and points to the BankâÄôs entering into receivership as sufficient to uncertainty as to the content of the BankâÄôs records. 4 create Cashion The district court also accurately noted that Cashion âÄúnever made a formal discovery request for the production of the [Note].âÄĚ (J.A. 277 n.2.) 10 asserts that MartinâÄôs âÄú[c]arefully insufficient to prove âÄúperfunctory and conclusory CashionâÄôs demand. We holder crafted status because verificationâÄĚ in it the is was a face of (Opening Br. 18, 22.) readily conclude that CashionâÄôs the relevant North Carolina case law. Appeals of affidavitâÄĚ North Carolina held that argument misconstrues In Liles, the Court of the plaintiff failed to introduce the promissory âÄúnote itself or any other competent evidenceâÄĚ showing that the plaintiff was the current holder of the note. 248 S.E.2d at 388 (emphasis added). CashionâÄôs argument ignores the courtâÄôs inclusion of the category âÄúor any other competent evidenceâÄĚ in asserting that Liles permits a debtor to demand strict proof in the form of the original Note as a mandatory condition precedent before a court can determine status as a holder. eliminated in Any uncertainty remaining after Liles was Dobson, wherein the North Carolina Court of Appeals flatly rejected the same argument now made by Cashion: that a holder of a note cannot prove his status by producing a copy of a promissory note as opposed to the original. S.E.2d at 730. 711 In Dobson, the plaintiff introduced a true and correct copy of the promissory note as well as affidavits from two bank officials holder of the note. stating Id. that the bank was the owner and The debtor disputed the accuracy of the copy, but offered no evidence that the photocopy was not a 11 true and correct copy. The North Carolina Court of Appeals noted that âÄú[u]nder similar circumstancesâÄĚ it had held that where there is no evidence that photocopies of a note or deed of trust are not exact reproductions of the original instruments, a party need not present the original note or deed of trust and may establish that it is the holder of the instruments by presenting photocopies of the note or deed of trust. Id. The debtorâÄôs âÄúbare statementâÄĚ denying the authenticity of the copy and demanding production of the original was âÄúinsufficient to cast doubt on [the bankâÄôs] evidence that [it] is the holder of the note and does not serve as evidence that the copies are not exact reproductions.âÄĚ So, too, CashionâÄôs production of the applicable North demand original Carolina of Id. at 731. âÄústrict proofâÄĚ not sufficient Note to law is defeat summary creating a genuine issue of material fact. through under judgment by Like the debtor in Dobson, Cashion produced no evidence to suggest that the copy of the Note in the record was somehow inaccurate, or anything but a true and correct copy. Nor did he produce any evidence other than bald speculation and his âÄúbare statementâÄĚ that the FDIC did not possess the original Note. any facts affidavit, that which BankâÄôs records. question was Cashion also failed to introduce the based veracity on her of Sherry personal M. knowledge MartinâÄôs of the See In re Foreclosure by David A. Simpson, P.C., 711 S.E.2d 165, 174-75 (N.C. Ct. App. 2011) (discussing 12 why an affiantâÄôs factual statements, so long as they are based on personal knowledge, are competent evidence). In short, Cashion came forward with no facts that call into question the FDICâÄôs evidence establishing that it is the holder of the Note. See Econo-Travel Motor Hotel Corp. v. Taylor, 271 S.E.2d 54, 57 (N.C. 1980) challenging (stating this that to a the evidence, create question debtor would have of fact to âÄúcome forward with facts, not mere allegations, which controvert the fact set forth in [the plaintiffâÄôs] caseâÄĚ). Note, coupled with MartinâÄôs affidavit, is The copy of the sufficient âÄúother competent evidenceâÄĚ to prove the FDICâÄôs status as holder of the Note under North Carolina law. The district court thus did not err in concluding that no genuine issue of material fact existed as to the FDICâÄôs status as holder of the Note. B. The district court granted the FDICâÄôs motion to strike the surreply and ChapmanâÄôs affidavit. It characterized the FDICâÄôs arguments Form regarding âÄúrebuttal[s]âÄĚ opposition to to the 1099-C issues raised summary judgment, in âÄúresponsesâÄĚ CashionâÄôs rather raised for the first time in the Reply.âÄĚ as than response âÄúâÄėnewâÄô (J.A. 274.) and in matters As such, it concluded Cashion âÄúhad ample opportunity to present all of his arguments and evidence regarding the [1099-C Form] in his 13 Responses to the FDICâÄôs Motion for Summary Judgment,âÄĚ and could have done so at that time. (J.A. 275.) The court also concluded that ChapmanâÄôs affidavit provided interpretations of the 1099-C Form, but because Chapman was not put forward as an expert witness, such testimony was not admissible as it went beyond his personal knowledge. Cashion error contends given that these both the decisions surreply constituted and reversible ChapmanâÄôs affidavit address the important matter of showing why the 1099-C Form was competent evidence. He explains that because the surreply and Chapman affidavit âÄúwere offered to aid, rather than hamper, the decision making process,âÄĚ Opening Br. 46, and were offered in response to an argument made for the first time in the reply brief (that the 1099-C Form was inadmissible and referred to the collateral for the Note), the district court should not have stricken them. On this record, we cannot say that the district court abused its discretion in granting the motion to strike CashionâÄôs surreply. Surreplies are generally not permitted under the local rules of the Western District of North Carolina, Local Rule 7.1(E), and the authorize filing one. opposing summary partiesâÄô briefing schedule did not Cashion relied on the 1099-C Form in judgment. The FDICâÄôs reply brief then challenged both the admissibility and weight of this evidence in 14 considering summary judgment. The reply brief therefore did not raise a new legal theory or new evidence, but instead responded to CashionâÄôs own argument and evidence. That Cashion failed to anticipate how the FDIC would respond to his reliance on the 1099-C Form surreply. does not automatically entitle him to file a Nor can we discern any other reason that would make the district courtâÄôs decision inequitable. As to the decision to strike ChapmanâÄôs affidavit, Federal Rule of Civil Procedure 56(c)(4) requires that âÄú[a]n affidavit or declaration used to support or oppose a motion [for summary judgment] must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.âÄĚ ChapmanâÄôs affidavit gives his lay opinion about the meaning of the 1099-C Form and challenges MartinâÄôs interpretation of it. Cashion has failed to show how that testimony reflects ChapmanâÄôs âÄúpersonal knowledgeâÄĚ of the 1099-C Form, speculative and expresses ChapmanâÄôs opinion. 5 nor can he; it is For these reasons, the district court did not abuse its discretion in striking the surreply and ChapmanâÄôs affidavit. 5 To the extent Cashion argues that MartinâÄôs affidavit should have been stricken because it, too, went beyond the scope of Rule 56(c), we note that Cashion failed to move to strike her affidavit. The district court thus had no occasion to consider that argument or rule upon it; as such, the matter is not properly before this Court on appeal. 15 C. The district court provided three different bases for its conclusion material fact assigned. our that the as to Form whether did the not Note create had an of cancelled been issue or We need only address one of those grounds in light of conclusion that CashionâÄôs position. 6 does 1099-C not itself it was a proper basis for rejecting The district court held that âÄúa Form 1099-C operate to legally discharge a debtorâÄôs liability,âÄĚ and thus âÄúdoes not, standing alone, raise a genuine issue of material fact regarding [CashionâÄôs] liability on the Note.âÄĚ (J.A. 283-84.) The district court held that summary judgment in favor of the FDIC was therefore appropriate because the Note was not âÄúsufficient evidence for a jury to return a verdict in [CashionâÄôs] favor on the issue of whether the Note . . . had been cancelled and/or assigned by [the Bank] prior to the institution of this action.âÄĚ 6 (J.A. 285.) At the outset, the district court noted Cashion had not established a proper foundation for admitting the Form into evidence, given that it was hearsay and had not been authenticated pursuant to Rule 803(6) or 902(11) of the Federal Rules of Evidence. It then concluded that the 1099-C Form âÄúappear[ed] to relate not to the assignment or cancellation of the . . . Note but rather to the assignment or cancellation of the NoteâÄôs collateralâÄĚ given that the 1099-C Form refers to âÄúAssignment of Promissory Notes.âÄĚ (J.A. 283). Only then did the court turn to the basis on which we affirm. Although we note some uncertainty as to the validity of these first two grounds, we need not examine them further given our agreement with the district court on its third basis of decision. 16 Cashion contends here, as he did below, that the 1099-C Form is prima facie evidence that the Note was discharged given that actual discharge is one of the identifiable events that can trigger the requirement to send the IRS and debtor copies of the form. court Cashion points to a handful of state and federal lower decisions that support his position that the district court erred in holding that the 1099-C Form does not constitute sufficient evidence of discharge to withstand a motion for summary judgment. Under CashionâÄôs theory of the case, the 1099- C facie Form is prima evidence of a discharge, and having proffered this prima facie evidence, the burden of persuasion shifted And, he to the FDIC contends, to the rebut a presumption FDIC cannot of cancellation. successfully rebut the presumption in this case because it has disavowed knowledge of actions prior to when the Bank entered into receivership. The FDIC responds that the 1099-C Form did not create a genuine judgment issue in of its material favor fact because it that is would not preclude sufficient alone upon which a jury could find in favor of Cashion. summary evidence Citing to the relevant IRS regulations, IRS statements regarding 1099-C Forms, various state and federal lower court opinions, and an unpublished opinion from the Fifth Circuit (some of which the district court relied on as well), the FDIC contends that the 1099-C Form did not effectuate a discharge, did not preclude it 17 from seeking evidenced at to most collect the proof actual cancellation. of amount an owed intent to on the cancel Note, rather and than Accordingly, the FDIC asserts the district court did not err in concluding that the 1099-C Form did not create a genuine issue of material fact as to whether the Note had been cancelled or assigned. The question before us is relatively straightforward: did the introduction into evidence of the 1099-C Form create a genuine issue of material fact as to whether the Note had been cancelled or assigned. This specific issue is one of first impression not only before this Court, but apparently before any federal appellate approximately two court through dozen state a and published federal opinion. cases While discuss the legal significance of a creditor filing a Form 1099-C with the IRS in any analogous context, there is only one relevant federal appellate court opinion, and it is unpublished. See Owens v. Commissioner, No. 02-61057, 2003 U.S. App. LEXIS 12481 (5th Cir. May 15, 2003) (per curiam) (unpublished). The other opinions, both published and unpublished, are from the United States Tax Court, bankruptcy courts, United States various state trial and appellate courts. District Courts, and As discussed in the partiesâÄô briefs and observed above, there is no uniformity in how these courts have resolved the central inquiry. 18 A small minority of the lower courts have held, as Cashion urges us to do here, that filing a Form 1099-C with the IRS constitutes prima facie evidence of an intent to discharge a loan, at which point the burden of persuasion shifts to the creditor to proffer evidence that it was filed by mistake or pursuant to another triggering event in the regulations. See, e.g., In re Welsh, No. 06-10831ELF, 2006 WL 3859233 (Bankr. E.D. Pa. Oct. 27, 2006) (unpublished); Amtrust Bank v. Fossett, 224 P.3d 935, 936-38 (Ariz. Ct. App. 2009); Franklin Credit Mgmt. Corp. v. Nicholas, 812 A.2d 51, 58-60 (Conn. App. 2002). These courts have generally noted that because filing a Form 1099-C has legal significance to the debtorâÄôs income tax liability, and because the debtor faces penalties or fines for failing to comply with the obligations imposed, it would be inequitable to permit a creditor to collect the debt after having received the benefit of the âÄúcharge-offâÄĚ of the debt from filing the Form 1099-C. Lastly, someâÄĒbut not allâÄĒof the courts holding that a filed Form 1099-C alone is prima facie evidence of discharge have also recognized that the form can satisfy the applicable UCC provisions for when a writing constitutes an âÄúintentional voluntary actâÄĚ of discharge, and thus itself effectuates the discharge of the relevant debt. Mgmt. Corp., 812 A.2d at 60-61. 19 See, e.g., Franklin Credit While lacks we any cannot support, we say that find a the analysis different summarized approach above taken by a majority of the courts to consider the matter ultimately more persuasive. That analysis relies principally on the language of the IRS regulations and the purpose of a Form 1099-C. E.g., Capital One, N.A. v. Massey, Case No. 4:10-CV-01707, 2011 WL 3299934, *3-*4 (S.D. Tex. Aug. 1, 2011) (unpublished); In re Zilka, 407 B.R. 684, 687-92 (Bankr. W.D. Pa. 2009); Lifestyles of Jasper, Inc. v. Gremore, 299 S.W.3d 275, 276-77 (Ky. Ct. App. 2009). The Internal Revenue Code (âÄúIRCâÄĚ) sets forth certain reporting requirements to the IRS, 26 U.S.C. Â§ 6050P, which the IRS regulations have implemented through the Form 1099-C filing requirement: any applicable entity . . . that discharges an indebtedness of any person . . . must file an information return on Form 1099-C with the Internal Revenue Service. Solely for purposes of the reporting requirements of [the applicable statute and this regulation], a discharge of indebtedness is deemed to have occurred . . . if and only if there has occurred an identifiable event described in paragraph (b)(2) of this section, whether or not an actual discharge of indebtedness has occurred on or before the date on which the identifiable event has occurred. 26 C.F.R. Â§ 1.6070P-1(a) (emphasis added). Subsection (b)(2) of 26 C.F.R. Â§ 1.6070P-1 lists eight âÄúidentifiable eventsâÄĚ that trigger the reporting obligation. The identifiable events include discharge through the debtorâÄôs filing for bankruptcy, 20 the expiration of the statute of limitations for collection, discharge by agreement of the parties, a creditorâÄôs decision âÄúto discontinue collection âÄúexpiration of the activity discharge testing non-payment and debt,âÄĚ period.âÄĚ Â§ and 1.6070P- 1(b)(2)(i). Tracking the plain language of the regulation, a creditor may be obligated to file a Form 1099-C even though an actual discharge of indebtedness contemplated. event not Cf. Subsection (a). triggering discharge has of the the obligation debt; rather, yet occurred or is not Moreover, the identifiable may the not event involve may be an actual deemed to constitute a âÄúdischargeâÄĚ âÄú[s]olely for purposes ofâÄĚ determining the Form 1099-C reporting obligation. Cf. id. and subsection (b). The plain language of the regulation leads us to conclude that filing a Form 1099-C is a creditorâÄôs required means of satisfying a reporting obligation to the IRS; it is not a means of accomplishing an actual discharge of debt, nor is it required only where an actual discharge has already occurred. This understanding of the creditorâÄôs obligation to file a Form 1099-C is also clearly expressed in the IRSâÄôs own interpretation of the regulations. addressed Two IRS Information Letters issued in October 2005 concerns regarding the impact of a creditorâÄôs compliance with the Form 1099-C reporting obligation and the 21 continuing liability of a debtor on the subject debt. I.R.S. Info. 2005-0207, 2005 WL 3561135 (Dec. 30, 2005); I.R.S. Info. 2005-0208, 2005 WL 3561136 (Dec. 30, 2005). In the first, the IRS addressed a creditorâÄôs concern that filing the Form 1099-C would constitute a written admission that it had discharged the debt and would therefore make debtors unwilling to pay on their obligations. Citing subsection (a) of the regulations discussed above, the IRS responded that it âÄúdoes not view a Form 1099-C as an admission by the creditor that it has discharged the debt and can no longer pursue collection.âÄĚ I.R.S. Info. 2005-0207. In the second letter, the IRS assured a concerned creditor that filing a Form 1099-C satisfies the reporting requirements of statute and implementing regulations, neither of which âÄúprohibit collection activity after a creditor reports by filing a Form 1099-C.âÄĚ The I.R.S. Info. 2005-0208. IRS, the administrative agency charged with the obligation of implementing IRC Â§ 6050P through its regulations, thus treats the Form 1099-C as a means for satisfying a reporting obligation and not as an instrument effectuating a discharge of debt or preventing a creditor from seeking payment on a debt. Moreover, as the IRS correctly noted in the foregoing Information Letters, nothing in the relevant statute or regulations prohibits collection following the filing of a 22 Form 1099-C. 7 Although the IRSâÄô interpretation is expressed in an information letter rather than a regulation or ruling, and thus is not subject Chevron 8-style to deference, it is nonetheless âÄúentitled to respect . . . to the extent that [its] interpretations have the power to persuade.âÄĚ Harris County, 529 U.S. 576, 587 (2000) Christensen v. (internal quotation marks omitted); see Dominion Res., Inc. v. United States, 219 F.3d 359, 366 (4th Cir. 2000). We find the IRSâÄôs view persuasive because it fully encompasses the purpose of a Form 1099-C as an IRS reporting document and follows the plain language of the relevant regulation. As noted, several courts have expressed a similar interpretation of the filing of a Form 1099-C, and although none of their opinions are binding expressed in some of them. on us, we note the reasoning In Owens v. Commissioner, No. 02- 61057, 2003 U.S. App. LEXIS 12481 (5th Cir. May 15, 2003) (per curiam) (unpublished), the Fifth Circuit observed that a Form 1099-C was not evidence that the creditor had actually cancelled a debt, but rather reflected at most an intention to cancel the debt in the future. Id. at *11-*12. 7 It thus criticized the IRS While some of the circumstances triggering the obligation to file a Form 1099-C may bar collection, it is that separate circumstance and not the fact of filing a Form 1099-C that acts as the bar. 8 Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837 (1984). 23 for not âÄúbother[ing] to follow up on the intention . . . to verify actual cancellationâÄĚ and instead relying solely on the issuance of a Form 1099-C when it charged the taxpayers with being deficient on their income taxes. In a case more similar in Id. at *12. setting to that at bar, in Capital One, N.A. v. Massey, No. 4:10-CV-01707, 2011 WL 3299934 (S.D. Texas Aug. 1, 2011) (unpublished), the United States District Court for the Southern District of Texas âÄúadopt[ed] the view that a 1099-C does not discharge debtors from liabilityâÄĚ because the form is âÄúissued to comply with IRS reporting requirementsâÄĚ and the IRS does not view it âÄúas a legal admission that a debtor is absolved from liability for a debt.âÄĚ 3299934, at *3. 2011 WL Accordingly, the Capital One court held that âÄúthe fact that [a creditor] issued a 1099-C in relation to the BorrowersâÄô indebtedness is irrelevant and does not raise a genuine issue of material factâÄĚ as to whether the debt had been cancelled. Id. Here, Cashion claims that the 1099-C Form is prima facie evidence, in and of itself, that the Note has been cancelled. We disagree. As noted earlier, the IRS did not create the form as a means of effectuating the discharge of a debt. instead, a reporting mechanism to the IRS. It is, Moreover, because a creditor can be required to file a Form 1099-C even where a debt has not been cancelled, the mere fact that a Form 1099-C is 24 filed does not constitute sufficient evidence, standing alone, that a debt has been cancelled. Without more, it is impossible for a court to know what the existence of a filed Form 1099-C means. It may mean the debt has been discharged; it may mean the creditor intended to discharge the debt in the future; or it may mean regulation that another occurred of the apart âÄúidentifiable from an eventsâÄĚ actual in the discharge. Furthermore, it may also have simply been filed by mistake. The bare Form 1099-C alone, which is CashionâÄôs sole evidence of debt discharge in this case, does not provide any of the contextual clues needed to decide between these alternatives. Summary judgment is appropriate if the record shows that âÄúthere is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.âÄĚ Civ. P. 56(a). Fed. R. A âÄúgenuine issueâÄĚ of fact exists âÄúwhen the evidence would allow a reasonable jury to return a verdict for the nonmoving party.âÄĚ News & Observer PublâÄôg Co. v. Raleigh- Durham Airport Auth., 597 F.3d 570, 576 (4th Cir. 2010) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). The nonmoving party âÄúâÄėmay not rely merely on allegations or denials in [his] own pleadingâÄô but must âÄėset out specific facts showing a genuine issue for trial.âÄôâÄĚ Id. (quoting Fed. R. Civil Pro. 56(e)). 25 CashionâÄôs claim of cancellation or assignment of the Note is based solely on the 1099-C Form. for cancellation or any evidence received to prove cancellation. paid the Note.9 He never proffered a reason beside the 1099-C Form he Cashion admitted he had not Only CashionâÄôs bald speculation ties his receipt of the 1099-C Form to a specific reason as to why the Bank would have issued it. rendered a As a matter of law, a jury could not have verdict in CashionâÄôs favor that the Note was cancelled or assigned when the sole evidence put forth was the 1099-C Form. As such, there is no genuine issue of material fact in this case. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (In the context of whether an issue of fact is âÄúgenuine,âÄĚ an opponent of summary judgment âÄúmust do more than simply show that metaphysical doubt as to the material facts.âÄĚ there is some He âÄúmust come forward with âÄėspecific facts showing that there is a genuine issue for trial.âÄô Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no âÄėgenuine issue for trial.âÄôâÄĚ). In so holding, we are careful to note the specific circumstances of this case and the narrowness of our holding. 9 Significantly, Cashion never sought discovery related to the issuance of the 1099-C Form or attempted to develop the record beyond the mere existence of the form as support for his argument. 26 The case at bar is likely an oddity, where the 1099-C Form is the only evidence of debt discharge before the Court. 10 This is not a situation where the evidentiary value of a Form 1099-C is considered in conjunction with other competent regarding the circumstances surrounding its filing. evidence In another case, where a properly authenticated Form 1099-C is introduced into evidence cancellation considered along of by circumstances the the on with debt, trier the other the of Form fact ultimate circumstantial under issue question was, in fact, cancelled. 1099-C of the could evidence be totality whether the of properly of the debt in But here, because Cashion has not come forward with evidence that creates a genuine issue of material fact as to whether the Note has been cancelled or assigned, the district court did not err in granting the FDICâÄôs motion for summary judgment. 11 10 As the dissent observes, the affidavit Cashion submitted attested that the Bank had cancelled the Note. The affidavit plainly represents that CashionâÄôs only basis for this belief is the 1099-C Form he received from the Bank. He offers no basis in the affidavit as proof of cancellation except the 1099-C Form itself. As such, CashionâÄôs affidavit does not change the relevant evidence that was before the district court when considering whether a genuine issue of material fact existed as to the NoteâÄôs cancellation. 11 Cashion repeatedly refers to the 1099-C Form as being evidence of cancellation and/or assignment. However, he does not raise any separate argument as to why the district court erred in concluding the 1099-C Form did not raise a genuine issue of material fact as to the NoteâÄôs assignment than he does (Continued) 27 III. For the reasons set forth above, the judgment of the district court in favor of the FDIC is AFFIRMED. as to its being evidence of cancellation. need not extend further. 28 As such, our analysis KING, Circuit Judge, dissenting: With all respect for my distinguished colleagues, I would vacate the judgment below and remand for trial. the summary judgment motion, the district In ruling on court improperly disregarded admissible evidence which, viewed in the light most favorable to Cashion, creates a genuine dispute of material fact as to whether CashionâÄôs $2 million debt to the Bank of Asheville has been discharged. As my friends emphasize, a Form 1099-C does not necessarily prove the discharge of a debt. It is of little moment, however, that IRS regulations specify that a Form 1099-C may be created âÄúwhether or occurred.âÄĚ court, not See an 26 Cashion actual C.F.R. discharge of indebtedness Â§ 1.6070P-1(a). presented the In handwritten has the district Form 1099-C, referencing the sum of more than $1.9 million, in opposition to the FDICâÄôs therewith, summary Cashion judgment filed his motion. own affidavit Contemporaneously asserting, inter alia, that âÄúthe Bank cancelled the alleged debt,âÄĚ and that âÄúthe Bank . . . has acknowledged that the debt which is a subject of this lawsuit has been cancelled and assigned.âÄĚ (J.A. 32, 38.) Significantly, it was not CashionâÄôs burden to establish on the FDICâÄôs summary judgment motion that his debt to the Bank was discharged as a matter of law. Rather, Cashion was obliged to show merely that there is a genuine dispute of material fact. In its reply memorandum, the FDIC asserted that: (1) the Form 1099-C constitutes inadmissible hearsay; (2) the Form 1099C relates only to the collateral secured by the Note; and (3) the Form 1099-C is insufficient, on its own, to create a genuine dispute of material fact as to whether the underlying debt has been discharged. As the majority observes, the district court adopted all three of the FDICâÄôs arguments. First, however, the Form 1099-C is admissible as a business record, pursuant Evidence. to Rule 803(6) of the Federal Rules of With its reply in support of summary judgment, the FDIC filed the affidavit of Sherry Martin, a Resolutions and Receiverships Specialist familiar with the books and records of the Bank. That affidavit establishes the provenance of the BankâÄôs records, relating that [t]he 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 BankâÄôs] regularly conducted business activity, the regular practice of which was to keep such books and records. J.A. 81. MartinâÄôs affidavit specifically discusses the Form 1099-C, reciting that âÄú[b]ased on the books and records of [the Bank], the [Form 1099-C] appear[s] to have been sent to Mr. Cashion by [the Bank.]âÄĚ Id. at 82. 30 These statements are all that is required by Rule 803(6) to render admissible the Form 1099-C. 1 Second, in concluding that the Form 1099-C relates only to the collateral secured by the Note, the district court relied on the FormâÄôs description of the debt as âÄúAssignment of Promissory Notes.âÄĚ J.A. 42. However, the Form 1099-C lists its relevant account number as 4436, the BankâÄôs account number for the loan and the Note. Thus, there are competing inferences to be resolved by a jury, not by a court on summary judgment. Finally, contrary to the majorityâÄôs assertion, this case does not present the question of whether the Form 1099-C, standing alone, constitutes âÄúsufficient evidence [on] which a jury could find in favor of Cashion.âÄĚ Ante at 17. the Form 1099-C cannot be considered in a vacuum. in the district court along with CashionâÄôs Put simply, It was filed own affidavit, wherein he verifies that the Bank has cancelled his debt. According to the majority, CashionâÄôs affidavit should be discounted because it âÄúplainly representsâÄĚ that the Form 1099-C provides the only basis discharged his debt. for CashionâÄôs Ante at 27 n.10. belief that the Bank Though the affidavit refers to the Form 1099-C, Cashion does not contend that his 1 If the proper foundation is established, the Form 1099-C would likely also be admissible as the statement of an opposing party, pursuant to Federal Rule of Evidence 801(d)(2). 31 belief is based solely on the Form. no explanation account number created and (except its associated sent it to Indeed, the Form provides references with the Cashion. to collateral Note) In for these why and the the Bank circumstances, a reasonable jury would be entitled to infer that the Form 1099-C reflects an intent CashionâÄôs debt. on the part of the Bank to discharge Such an inference is supported by the origin of the Form 1099-C, i.e., the Bank itself, and the FDICâÄôs failure to show that the circumstances of the FormâÄôs existence âÄúindicate [any] lack of trustworthiness.âÄĚ Fed. R. Evid. 803(6)(E). 2 The majorityâÄôs discussion of the divergent legal principles concerning the evidentiary weight properly accorded a Form 1099C is, in my reinforces differâÄôâÄĚ view, the on unnecessary, this proposition central that point. and the discussion âÄúâÄėreasonable Bouchat v. simply minds could Balt. Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (quoting 2 In assessing the meaning of the FormâÄôs reference to âÄúCancellation of Debt,âÄĚ the jury would be entitled to view the cancellation in several ways, such as, by way of example, a discharge, a charge-off, a refinancing, a corrupt action by a Bank officer, or, perhaps, a gift by the Bank. Any of these plausible views of the record would give rise to an inference sufficient to defeat the FDICâÄôs summary judgment motion, because it bears the burden on summary judgment of showing the absence of a genuine dispute of material fact. See Matsushita Elec. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (âÄú[O]n summary judgment the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion.âÄĚ (alterations and internal quotation marks omitted)). 32 Anderson v. (explaining Liberty that, on Lobby, summary Inc., 47 judgment, U.S. 242, court 250 must (1986) determine whether âÄúthere are any genuine factual issues that properly can be resolved . . . in favor of either partyâÄĚ)). As a result, summary judgment should not be awarded. Finally, I acknowledge that the handwritten Form 1099-C, viewed in the context of the substantial nature of the loan and the careful manner in which banks normally do business, could lead a reasonable factfinder to view this particular Form with suspicion. Indeed, if I were the factfinder, I would seriously question the legitimacy of a handwritten Form 1099-C purporting to cancel nearly $2 million of debt. But, as an appeals court, we do not sit in a factfinding capacity, and neither does a district court when resolving a summary judgment motion. Instead, the question of how the Form 1099-C should influence the outcome of this case is for a jury. simply to vacate and remand for trial. I respectfully dissent. 33 Our proper course is