Tuesday, March 20, 2012, 8:52 AM

COA: Mergers of Less-Well-Known Banks May Not Be Judicially Noticed

Today the COA found that courts may not take judicial notice of mergers between smaller or lesser-known banks. The case is TD Bank, N.A. v. Mirabella. Smaller or lesser-known banks seeking to prove a merger should therefore provide affidavits and evidence of the merger to the trial court.

Plaintiff TD Bank sued borrower Mirabella on a Promissory Note on which Mirabella defaulted. The Note was between Mirabella and First Carolina Bank as lender, not TD Bank. TD Bank got summary judgment on the amount owed. On appeal the borrower claimed that TD Bank failed to show that it was the owner and holder of the Note.

The Court of Appeals found that there was insufficient evidence that TD Bank was the holder of the Note, and therefore summary judgment was improper. TD Bank claimed that it stood in the place of First Carolina Bank due to a merger between the two banks. The COA noted that neither the complaint nor any other documents in the record provided any evidence of the merger. TD Bank's inclusion of the merger documents as an appendix to its appellate brief was not a proper method of presenting evidence of the merger to the Court, especially since the borrower contested the validity of the documents. The COA noted that TD Bank could have filed the documents or an affidavit with the trial court.

The COA also found that it could not take judicial notice of the merger between Carolina First Bank and TD Bank because it did not fall within the realm of “common and general knowledge.” The COA noted that this merger could not be analogized to that of Wachovia and Wells Fargo (which has been judicially noticed by at least one federal court) because TD Bank and First Carolina Bank "are not quite so well-known as Wells Fargo and Wachovia as this panel has never heard of TD Bank or First Carolina Bank, much less of their merger[.]"


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