as a brief and back down so that your your client has never disputed that the note has not been that is correct he has not disputed that it's been paid it's a question of who was the owner and hold that you had cancer you had a bunch of different theories but you only rely on the cancellation theory is that correct to answer your honest question if if the premise is that we're looking at the cancellation theory the starting point is to look at it to ninety nine and see if you look at question that's not the question i'm not this isn't a trick question you have the note so that the all the your argument that there is no note is gone if you don't have in your possession but you've seen your client seen it ok yes i am or how is the only argument that you have left that the note has been camp will that be your whole case and you go to the jury that would be the on the core of the case take care of that it's exactly what they want it go get they can go against you but if they have realized on it then there is a question of damages ok you think limiting damages but i'm talking about going forward is there any other argument that assigned the promissory notes we don't know what that means so if they come with the original note but that's part of the cancellation it says on the right of the ten are that you're talking about is hansel so version original no the only issue left is a cancellation and cancellation yes yes was it cancelled yes and the cancellation issue you would one would also look at the uniform commercial code not simply at the to ninety nine c because in the north carolina uniform commercial code the debt on a promissory note goes away if it is cancelled and uses the word cancellation and section twenty five to i believe it's two six zero five six so if we assume as ron has asked me to assume that there was not some endorsement to a third party in the original note that we have not seen you can come back to that was yes and the only issue is whether lation is the only issue whether the debt has been cancelled then i would invite the court's attention to the is a question of fact then i think we have two things we have that original problems were not being presented when it is a matter of law failure to have ten ninety nine create that is that which i did say that you're ok and if we should conclude that you know it's a matter of law did not you l if the court rejects both the obligation of the f d i c to produce the original note and rejects the proposition that within i mean on see creates a question of fact about whether the debt has been cancelled then i do not see how i get to a jury except for on the issue of damages such as what happened with the disposition of the collateral to which i may be but i'm to the office of the district judge's opinion on those cancellations issues i read it very well be wrong say was that the only evidence proffered was what appears page forty two of the appendix copy of the ten ninety nine and that there was that or the or the truth of the of the assertion that the debt is no longer a factual assertion but in order to do that to present it for that purpose it's hearsay so you had to establish some sort  of hearsay exclusion with some sort of evidence and the judge the district court judge said that that you failed to do that wasn't then ninety nine couldn't prove it is just you failed to make the preliminary showing that would make it bible what the rationale is i didn't quote what i remember your honor is that the judge did not alter muttley consider that to be material the hearsay issue but the judge was we ended up making the decision or whether some individuals at the bank were acting not in the bank interest and maybe fabricating documents like the ones you rely on that is is why would be a question of fact for the jury  to have a person who can testify about that document or what would you put before the the district court to establish the bona fide ease of this to ninety nine that met the business records exception and you take the deposition of any of the bank officers to it who would have been involved with this account in order to explain the creation of it or i mean it seems like that would been a fairly standard path to take to verify your your intended evidence your honor the disk written discovery responses do not knowledge by the f b i see of anything that happened before the date of its t yet in the affidavit of the f d i c officer that verified the document she did acknowledge it was in the f b i seize files from having taken over the back of ashville we can look at what what did you put in the record you can tender other than just the copy of the ten ninety nine i mean what's your evidence that it's it's bona fide it was made in the ordinary course of business and  the person was presumably you could have found them and depose them your honor i believe that it was the bank's obligation to explain and to come up with the original not so for that reason during our discovery they produced a copy it you object and say no we need to see the original can negotiate these things at any time remember what you have here and have a basis for saying that your copy is not a copy and you know we do not know when the copy was made or out of the cop could have been made several years earlier as part of  arg i would agree your honor we did not produce the original however because there is no legal obligation to do so we have it with you i do not have it with me i view everything i have not original note and you do that having never seen the original note i can do that based on the affidavit of my client and my client that she say that in her affidavit yes think solely due to the distance of where they store the file or the file i believe that in this case and maybe not in the it may be in the record in terms of where miss martin is located but i think they are which only requires that a copy be provided because the issue is not whether or not there isn't a the original note is seen by the debtor it's mr cash and they ask and discovery for the real  purposes of discovery it's pacifically stated that and that is in the record the where the original note was requested is in the answer to the complaint that is where you will find a request for the original note and however as i was saying in north carolina the original plea preceded its coverage that is correct that is correct  issue is not whether or not the defendant has seen the original know it it's whether the plaintiff has established that they are the owner and holder of the note and under the law is case which is cited by the defendant the the plaintiff there fail to establish they were the owner and holder of the note in the court said one way to do that was to provide the original note that is not the only way to do that and that is what the dobson court says that the establishment of an owner being the owner and hold and i have to say i thought the government your argument was a little odd basically had no explanation what the explanation it was sort of maybe it was why it was present in the lo acknowledge it present in the alone file you acknowledge what it says so what are we to make of all that it is curious and it is a difficulty in handling this matter to me maybe it is a phony you have that we would we would claim it was a phony if we had someone to testify as much but we don't we can only offer that it was present in the loan fall when the f d i c took over the it part of the books and records of the ba the authenticity of a so the question is will the legal effect of authentic admissible ten ninety nine if it has any relevance to this and it says on the face of it that it has the same low number as the note i don't know if that is correct although i would differ with the statement that it's authentic somehow authentic these days you say it's not all fact if you made it if you made of the evidence that's been the the debt has been cancelled not at that point yet all he has to show is that there is a material issue of fact that's still in dispute the order to getting to that point to do that we have this copy of a ten ninety nine here and as i understand the district court judge's decision he ruled that there needed to be some further authentication of the documents in order for it to be considered even for summary judgment purposes if that's an evidentiary ruling what's what's our standard to review there and was he correct or two thousand and ten and and the bank of rifles the creditor and the other cases where ten ninety nine has been allowed to be put into evidence it's offered by someone employed by the bank who may have in fact prepared the ten ninety nine or that you demand in the shoes of the bank you stand in the shoes of the bank when i go and you can attest that these are the records of the bank and you have done that but there is no and we have to look at the that the evidence here the materials the evidence in the light most favorable to the other side at this point now you jury may we all agree with you that is that i mean i was just a bookkeeping thing if that's what you say it is i don't know what it was but look at it in the light most favorable to mr cash and and what can we do it there's no evidence that it was actually sent to the were correct or not so when we are trying to answer the question of whether or not this ten created a material issue of fact in this where the judge said it didn't because it wasn't sufficiently supported how do we review that what standard are we using to make that determination i am not able to say for sure i haven't been able to find that be a fairly crucial part of this case yes and i do address that in my brief and i'm i have apologized to the court i'm not recalling exactly what standard i provided in the brief i think however for the case of argument you should even and party admission assuming that the ten ninety nine is admissible there are federal court cases which say that a ten ninety nine such as this ten ninety nine c does not raise and a a genuine issue of material fact in their that there are such a couple of state court cases which you can differentiate from this kates there are three cited and in all of them there deficiency suits which is different than this case this is the suit on the note where there has been no foreclosure so to speak of the collateral which in this case is three other loans interestingly and this ten ninety nine apparently was received by the defendant after this lawsuit was filed the lawsuit debtor had already paid taxes because of course this is a taxable event to have debt forgiven and in those cases there was there were other issues that are not present in this case and again there's two arizona state court cases and a connecticut create a material issue of fact as to whether or not it was no and in fact that is what's happened in these other federal court cases because in these federal court cases where the ten ninety nine c has been issued erroneous lawyer or otherwise by the lending institution it's admitted to the court in capital one versus massey which is a federal case the the court said that even the i r s does not view the ten ninety nine c as a legal admission that a debtor is absolved from liability for the debt and it adopts the view that the ten ninety nine c does not in and of itself discharge the debtors from liability that i or it didn't and ninety nine then they have to send the ten ninety nine even if the lender is going to pursue the note is that right that's correct and i believe that in raising has the discussion where this problem derives from which is when a lending institution charges off its debt in other words finds it to be worthless for some reason it's they have regulatory reasons why they have to charge off the debt on their books to show its true value debt is been forgiven correct and correct but i interrupted you would your is it your position then that is a matter of law even if the linder verified that they sent the two ninety nine it was a bona fide of the that evidence as a matter of law is insufficient to create a material issue of fact as to whether there was a yes so even at a summary judgment proceeding the debtor would have to produce additional evidence in your view before the district court judge could make a determination to deny the motion for summary judgment yes and that is exactly what happens in capital one versus massey on summary judgment attend ninety nine see is in evidence so to speak and that is what the court finds and that is why there is discussion in the case at bar by our district court judge that the defendant has offered no evidence to challenge that the f d i c succeeded to the rights of the bank of ashville that a copy the copy of the note is accurate that the c has possession of the note and that the note has not been a sign that the defendants have not offered any evidence contrary to the to what the bank of asheville in this case the f d i c has offered into evidence there isn't anything to dispute the those basic facts and the court goes on to conclude that even assuming this ten ninety nine c is admissible it does not itself operate to legally discharge the debtors  i think that in was other than a cancellation i'm not sure that there is a burden to explain it since by since it does not operate to discharge with a summary judgment then you're the moving part and you have to neutralize the impact of this not if this court chooses to adopt the opinion of these other federal court cases where the courts have concluded that a ten ninety nine c standing alone does not operate as a matter of law to discharge the debt to discharge it is it evidence some evidence that the debt might have been destroyed the fifth circuit has held that the ten ninety nine can show an intention to cancel debt but not actual cancellation if you look at that in the light most favorable to the defense against the moving party there is no evidence to the contrary no evidence offered by this defendant to the the on the issue of summary judgment specifically are on ten ninety nine c's and the fifth circuit has the result i went first as part of publish i don't i believe it is a published is there are actually five federal court cases that are cited in my brief that in the four short there are not any in the four circuit no so on the ten ninety cancellation note is that it seems that you would require the debtor in effect to have prove their case beyond you know be honorable by virtue of the other that the debt was in fact actually ca almost that you would have to have all your proof that would you would use trial before the court in order for the court to make a decision so you've gone beyond just showing there's a dispute  that like you go to that you're requiring the merits to be proven at the summary judgment that the merits of the defendant brett i am stating that the defendant must offer some evidence to create a material fact and in this case the only evidence offered is the ten ninety nine c and if the ten ninety nine going i'm sorry if the ten ninety nine c as a matter of law does not discharge the debtors from liability then there is nothing else remaining thank you thank you very much in fact the or i'm sorry not the i r s the lender can send ten ninety nine with out in fact releasing the debt isn't that correct lender can say under ten ninety nine and still have some intent to pursue the debt right though that would have some tax consequences for both sides there was a question i think that judge king raised concerning whether this was just a piece of paper that w to mr cashin a whether there was any indication in the record that the ten ninety nine c had been sent to the i r s i would invite the court's attention to page one fifty seven of the joint appendix the iris transcript shows the original ten ninety nine c having been submitted to the i r s is that way it works if you say if you send if you prepare a ten ninety nine on the creditor does they send the original to the i ok the question of what does the question of what is intended by sending it to ninety nine see is function of exploring the code of federal regulations the events that can trigger it are bankruptcy receivership expiration of a statute of limitations in a state where you have a foreclosure election that rules out sitting on the probate an agreement which appears to be a settlement agreement or g is the only one that is left over as a through f none of those apply is an attempt to discontinue collection activity in discharge that so prima fashion if we look at what the back bashful did it intended under the code of federal regulations to discontinue collection activity and discharge the debt and that statement has an impact under the north carolina uniform commercial code where there is a writing that cancels the debt because of the the