General Electric Credit Corp. of Georgia, Inc. v. Ball

253 S.E.2d 574, 40 N.C. App. 586, 1979 N.C. App. LEXIS 2284

• Court: Court of Appeals of North Carolina
• Decided: April 3, 1979
• Docket: No. 7828SC449
• Status: Published

Opinion

HEDRICK, Judge.

At the outset, we note that this case involves a “consumer credit sale” within the meaning of G.S. § 25A-2, and thus the provisions of Chapter 25A entitled “Retail Installment Sales Act” are applicable.

The provisions of G.S. § 25A-25(b) in effect when the transactions giving rise to this case occurred, are as follows:

(b) In a consumer credit sale, a buyer may assert against the seller, assignee of the seller, or other holder of the instrument or instruments of indebtedness, any defenses available against the original seller, and the buyer may not waive these defenses in connection with a consumer credit sale transaction, except that in a consumer credit sale of personal property, the buyer shall be considered to have waived his defenses against an assignee of the seller who acquires the instrument or instruments of indebtedness in good faith and for value, if the buyer, following delivery of the property and after receiving from the assignee separate written notice of the waiver and the assignment containing the name and address of the assignee, fails for 30 days to notify the assignee of any defense against the seller; provided, however, a buyer may not waive defenses for fraud in the inducement or for failure of consideration.

With regard to the assignment in the present case, the retail installment contract contains the following printed form provisions at the top of the first page:

“NOTE: It is anticipated that this contract, when fully completed and signed, will be submitted to General Electric Credit Corporation of Georgia; 88 Johnson Ferry Road, Atlanta, Georgia 30324 (GECC), or its local branch office for purchase and, if approved, that it will be assigned to GECC.”

At the bottom of the first page, next to the buyer’s signatures, the contract states: “ACCEPTED: The foregoing contract is hereby assigned under the terms of the Assignment on the reverse side. United Mobile Homes of America, Inc. (seller).” The signature of James L. Cavenaugh, as Treasurer of United Mobile Homes, appears beneath the above provision. The reverse side of the contract contains the following provision: “If Seller assigns this agreement, he shall not be assignee’s agent for any purpose. Buyer agrees that acceptance of an assignment of this contract shall not impose upon assignee any obligation or any liability for breach of this contract.”

The recital in the consumer credit sales contract that the assignee shall not be responsible to the buyer for any breach of the contract is clearly superceded by the provisions of G.S. § 25A-25(b). There is nothing in this record to establish that the assignee gave the buyer the notice required in G.S. § 25A-25(b) so as to come under the exception contained therein. Thus, the evidence does not establish that defendant waived her right to assert against the plaintiff’s claim any defenses that she could assert against the seller. Indeed, the defendant has attempted to assert against plaintiff’s claim seller’s breach of the contract with respect to credit life insurance. At this stage of the proceedings, we are unable to forecast what course the case will take when the evidence regarding the buyer’s defenses is more fully developed and is considered in light of the legal principles set out in G.S. § 25A-25(b). From this record, however, we are unable to say that the plaintiff, as the movant for summary judgment, has met its burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.

Reversed and remanded..

Judges Parker and Carlton concur.