N.C. Court of Appeals: In re Yopp- Holder of the Note through Corporate Merger; Evidence Allowable in a Foreclosure

Summary: Capital One commenced a foreclosure against the Debtors on a Deed of Trust, originally granted to Chevy Chase Bank, which later merged with Capital One.  The foreclosure was allowed in part based on, among other documents, an Affidavit from James Cox, Vice President of Capital One.  This Affidavit stated that "to the best of [his] knowledge" Capital One was the servicer and holder of the mortgage note. The Debtors objected to this affidavit, arguing that it denoted only Mr.  Cox’s personal opinion and was not made upon personal knowledge as required by Rule 56(e).  The Court of Appeals rejected this argument, holding instead that when an Affiant puts a "self-imposed limitation to the affiant’s personal knowledge" See Faulk v. Dellinger, 44 N.C. App. 39, 259, S.E.2d 782 (1979), such a limitation does not eliminate the basis of the statement in the affiant’s personal knowledge. The Debtors next objected that the statements by Mr. Cox that Capital One was the holder of the indebtedness constituted an inadmissable conclusion of law, that should have been reserved for the court.  The Court of Appeals agreed with this, reiterating that "[s]tatements in affidavits as to opinion, belief, or conclusions of law are of no effect[.]" Lemon v. Combs, 164 N.C. App. 615, 622, 596 S.E.2d 344, 349 (2004) (quoting 3 Am. Jur. 2d, Affidavits § 13); In re Simpson, ___ N.C. App. at ___, 711 S.E.2d at 173-74 (disregarding the affiant’s "conclusion as  to the identity of the ‘owner and holder’ of the [promissory note and deed of trust").  This inadmissable statement did not, however, require that the entire Affidavit be excluded. The Debtors further argued that an internet print-out, showing the merger of the previous note holder with Capital One, should not have been admitted as a "public record" without being authenticated.  Again the Court of Appeals agreed with the Debtors’ position, stating that"the mere fact that a document is printed out from the internet does not endow that document with any authentication whatsoever."  As evidence of the merger was admitted in other evidence without objection, exclusion of the internet print-out was waived. Lastly, the Debtors objected that Capital One had failed to prove that it was the holder of the note.  Distinguishing this case from  In re Simpson, ___ N.C. App. at ___, 711 S.E.2d 165, where the purported note holder had gained possession through indorsement of the original, in this case  Capital One received its rights, pursuant to N.C.G.S. § 53-17, through the merger. In re Yopp- Holder of the Note through Corporate Merger Evidence Allowable in a Foreclosure.PDF