N.C. Court of Appeals: TD Bank v. Mirabella- Judicial Notice Inappropriate to Show Merger as Basis for Establishing Holder of a Note

Summary: TD Bank filed suit against Mirabella (rather than foreclosing) for amounts owed on a promissory note, originally entered into by Mirabella and Carolina First Bank (CFB).  TD Bank contended that, following its merger with CFB, it stood in the place of CFB.  No evidence, however, was presented at trial of the merger, instead TD Bank argued that the court should take judicial notice of the merger. The Court of Appeals rejected this argument, finding that judicial notice is appropriate for "facts generally known with the territorial jurisdiction."  While the merger between Wachovia and Wells Fargo could rise to the level of judicial notice, the same could not be said of the merger of TD Bank and CFB.  Further, while a court can take judicial notice of facts from "sources whose accuracy cannot reasonably be questioned", such as documents filed with a Secretary of State, the Court of Appeals agreed with Mirabella that bank mergers are of such a complex nature that a mere photocopy of such documents are insufficient. Commentary: Given the difficulties that the Middle District of North Carolina Bankruptcy Court is wrestling with as a result of the multiple mergers and dissolutions of Beneficial Mortgage of North Carolina, this case is particularly timely. For a copy of the opinion, please see: TD Bank v. Mirabella- Judicial Notice Inappropriate to Show Merger as Basis for Establishing Holder of a Note,PDF