N.C. Ct. of App.: Carrington Oaks v. Weiss- Judgment Notwithstanding Verdict; Fraudulent Signatures

Summary:

Mr. Weiss, together with his business partner, purchased land for development in Charlotte by obtaining a $28,290,000 loan from GECMC 2006-C1 Carrington Oaks, LLC (“Carrington Oaks”) conditioned, in part, on their personal guaranties. After the loan defaulted, Carrington Oaks brought suit for payment against Mr. Weiss.

At trial, however, Mr. Weiss testified that he had retained the Dreier Law Firm to execute documents for different real estate transactions, including the Carrington Place deal, often signing between thirty and forty signature pages each time went to the Dreier offices. He alleged that one of these signature pages was attached to the guaranty, which he otherwise was not aware, denying specifically signing and executing such. In connection with that loan, both the Dreier Law Firm and Kennedy Covington Lobdell & Hickman, L.L.P. (“Kennedy Covington”) of Charlotte, wrote opinion letters, accompanied by certifications signed by Mr. Weiss, asserting that the Guaranty was duly executed.

Carrington Oaks produced testimony that the guaranty had signature pages attached upon receipt, but Mr. Weiss countered by noting that the signature pages, unlike the body of the guaranty, lacked page numbers and footers. At the close of evidence, Carrington Oaks sought a directed verdict, which was denied. The jury returned a verdict finding that Mr. Weiss had not signed the signature page to the guaranty, with such verdict being affirmed by the court, despite the motion for judgment notwithstanding the verdict by Carrington Oaks.

Judgments notwithstanding the verdict “are rarely granted . . . because, even though proponent succeeds in the difficult task of establishing a clear and uncontradicted prima facie case, there will ordinarily remain in issue the credibility of the evidence adduced by proponent.” North Carolina Nat’l Bank v. Burnette, 297 N.C. 524, 536, 256 S.E.2d 388, 395 (1979). Carrington Oak could still prevail, however, if credibility is manifest as a matter of law, such as:

(1) Where non-movant establishes proponent’s case by admitting the truth of the basic facts upon which the claim of proponent rests.
(2) Where the controlling evidence is documentary and non-movant does not deny the authenticity or correctness of the documents.
(3) Where there are only latent doubts as to the credibility of oral testimony and the opposing party has failed to point to specific areas of impeachment and contradictions.

Urging that the second example was met, Carrington Oaks argues that North Carolina Rule of Evidence 902(9) makes commercial paper and “signatures thereon” self-authenticating such that “[e]xtrinsic evidence of authenticity as a condition precedent to admissibility is not required….” Such admissibility “does not determine whether a jury will assign any particular weight to the evidence. See, e.g., Queen City Coach Co. v. Lee, 218 N.C. 320, 323, 11 S.E.2d 341, 343 (1940).

According the jury verdict and the denial of the JNOV was denied.

Commentary:

It is not clear whether the notorious practices of Marc Dreier, which lead to his eventual disbarment and criminal conviction in 2009 for selling $380 million in fictitious promissory notes, were introduced into evidence, but that would seem to make Mr. Weiss’ defense more believable.

For a copy of the opinion, please see:

Carrington Oaks v. Weiss- Judgment Notwithstanding Verdict; Fraudulent Signatures

About

1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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