First Federal Bank v. Aldridge

749 S.E.2d 289, 230 N.C. App. 187, 2013 WL 5912063, 2013 N.C. App. LEXIS 1163
CourtCourt of Appeals of North Carolina
DecidedNovember 5, 2013
DocketNo. COA13-450
StatusPublished
Cited by52 cases

This text of 749 S.E.2d 289 (First Federal Bank v. Aldridge) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
First Federal Bank v. Aldridge, 749 S.E.2d 289, 230 N.C. App. 187, 2013 WL 5912063, 2013 N.C. App. LEXIS 1163 (N.C. Ct. App. 2013).

Opinion

HUNTER, JR., Robert N., Judge.

First Federal Bank (“Plaintiff’) appeals from an order dismissing its complaint with prejudice pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Plaintiff contends that its complaint, which seeks enforcement of two promissory notes, contains sufficient [188]*188allegations identifying its right to enforce the instruments. In the alternative, Plaintiff contends that dismissal with prejudice was inequitable and requests a remand with opportunity to amend the complaint. We disagree and affirm the trial court’s order.

I. Factual & Procedural History

Plaintiff filed a complaint in this action on 26 September 2012 seeking enforcement of two promissory notes executed by Scott D. Aldridge (“Defendant”). Both of these promissory notes, which are attached and incorporated into the complaint by reference, identify Defendant as the borrower and “Cape Fear Bank” as the lender. Plaintiff is not identified in either instrument.

The first note, executed by Defendant on 13 February 2008, required Defendant to pay back aprincipal loan of $293,727.44 by 20 February 2009 at a five percent interest rate. The second note, executed by Defendant on 17 March 2009, modified the original agreement by extending the due date on the loan by thirteen months. Plaintiff alleges that Defendant is in default under the terms of the agreement, leaving an unpaid balance of $228,830.29, plus interest.

Attached to Plaintiff’s complaint was the affidavit of Michael S. Brinson (“Mr. Brinson”), an Asset Recovery Coordinator for Plaintiff. In the affidavit, Mr. Brinson stated that he was “familiar with the books and records of the Plaintiff’ and “familiar with the account of [Defendant],” and that Defendant’s account was in arrears for the amount of $228,830.29, plus interest. Neither the text of the complaint nor Mr. Brinson’s affidavit indicate that Plaintiff Bank had acquired the debt from Cape Fear Bank or was otherwise entitled to it as a holder in due course.

On 23 October 2012, Defendant filed an answer and simultaneously moved to dismiss Plaintiff’s complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of our Rules of Civil Procedure. Following a hearing, the trial court dismissed Plaintiff’s complaint with prejudice. The record does not contain any evidence that Plaintiff sought to amend the complaint during the hearing or afterward.

II. Jurisdiction

Plaintiff’s appeal from the district court’s final order granting Defendant’s motion to dismiss lies of right to this Court pursuant to N.C. Gen. Stat. § 7A-27(c) (2011).

[189]*189III. Analysis

Plaintiffs appeal presents two questions for our review. First, whether the trial court erred in granting Defendant’s motion to dismiss. Second, if the dismissal was proper, whether the trial court erred by dismissing Plaintiff’s complaint with prejudice.

A. Defendant’s 12(b)(6) Motion to Dismiss

At issue with respect to Defendant’s motion to dismiss is whether the allegations of Plaintiff’s complaint demonstrate Plaintiff’s right to enforce promissory notes executed by Defendant with a third party bank. Plaintiff contends that the allegations are sufficient under the notice pleading standard of N.C. R. Civ. P. 8 and that any ambiguity in the complaint should be resolved through discovery. We disagree.

“This Court must conduct a de novo review of the pleadings to determine their legal sufficiency and to determine whether the trial court’s ruling on the motion to dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4, aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003). “ ‘On a Rule 12(b)(6) motion to dismiss, the question is whether, as a matter of law, the allegations of the complaint, treated as true, state a claim upon which relief can be granted.’ ” Allred v. Capital Area Soccer League, Inc., 194 N.C. App. 280, 282, 669 S.E.2d 777, 778 (2008) (quoting Wood v. Guilford Cty., 355 N.C. 161, 166, 558 S.E.2d 490, 494 (2002)). Accordingly, we must consider Plaintiff’s complaint “to determine whether, when liberally construed, it states enough to give the substantive elements of a legally recognized claim.” Governors Club, Inc. v. Governors Club Ltd. P'Ship, 152 N.C. App. 240, 246, 567 S.E.2d 781, 786 (2002) (internal citations omitted), aff’d per curiam, 357 N.C. 46, 577 S.E.2d 620 (2003).

Evidence that a plaintiff is the holder of a promissory note, or has otherwise acquired the rights of the holder, is an “essential element of a cause of action upon such note.” Liles v. Myers, 38 N.C. App. 525, 528, 248 S.E.2d 385, 388 (1978); accord N.C. Gen. Stat. § 25-3-301 (2011). See also Kane Plaza Assocs. v. Chadwick, 126 N.C. App. 661, 664, 486 S.E.2d 465, 467 (1997) (stating that the party seeking enforcement of a promissory note “must be a real party in interest, i. e., it must assert legal rights that will be determined by the litigation”). The “holder” of a negotiable ■ instrument is defined as:

a. The person in possession of a negotiable instrument that is payable either to bearer or to an identified person that is the person in possession;
[190]*190b. The person in possession of a negotiable tangible document of title if the goods are deliverable either to bearer or to the order of the person in possession; or
c. The person in control of a negotiable electronic document of title.

N.C. Gen. Stat. § 25-1-201(21) (2011).

When the plaintiff is the payee of a promissory note that has been attached to the complaint, he is not required to allege in his complaint that he is the holder of the note because “[t]he payee or endorsee of a note is the prima facie owner and holder.” Deloatch v. Vinson, 108 N.C. 147, 148, 12 S.E. 895, 896 (1891).1 However, when the plaintiff is not the payee, he “must aver the facts showing the execution of the note and the assignment or other transfer to himself.” Id. at 150,12 S.E. at 896.

For example, in Kane Plaza, the trial court dismissed the plaintiff’s complaint in an action to enforce a promissory note on the ground that the complaint failed to allege that the plaintiff was the holder of the note. Kane Plaza, 126 N.C. App. at 663,486 S.E.2d at 466. On appeal, this Court reversed because, although the note did not indicate the plaintiff was the payee, an additional agreement indicating that the payee was a disclosed agent of the plaintiff with respect to the note was attached and incorporated into the complaint. Id. at 665-66, 486 S.E.2d at 467-68.

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Bluebook (online)
749 S.E.2d 289, 230 N.C. App. 187, 2013 WL 5912063, 2013 N.C. App. LEXIS 1163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-federal-bank-v-aldridge-ncctapp-2013.