Merritt v. Ridge

372 S.E.2d 559, 323 N.C. 330, 1988 N.C. LEXIS 602, 1988 WL 103566
Supreme Court of North Carolina·Decided October 6, 1988·No. 12PA88·Published·Cited by 29 cases

Opinions

MITCHELL, Justice.

The controlling issue in this case is whether the anti-deficiency statute, N.C.G.S. § 45-21.381, bars the holder of a purchase [332]*332money promissory note given by a buyer of real property to the seller and secured by a purchase money deed of trust embracing the property from recovering the costs of foreclosure of the deed of trust and sale of the property and related attorneys’ fees. We conclude that the statute precludes such recovery. Accordingly, we reverse the decision of the Court of Appeals.

The facts are largely undisputed in this case. The record reveals that, on 26 January 1982, the plaintiff-appellees sold an 80.55-acre tract of land in Chatham County to the defendant-appellants. The plaintiffs accepted two purchase money promissory notes, for the total sum of $200,000.00, secured by a purchase money deed of trust on the property. Each of the notes provided that upon default the maker would pay the holder fifteen percent of the outstanding balance for reasonable attorneys’ fees and pay all other reasonable expenses incurred by the holder in the exercise of any of the holder’s rights and remedies upon default. These provisions were expressly incorporated by reference into the deed of trust.

After making several payments, the defendants defaulted. The plaintiffs caused the trustee to initiate foreclosure proceedings. On 14 July 1986, the trustee conducted a foreclosure sale. He subsequently filed a Report of Sale indicating that a bid on the property was made on behalf of the plaintiffs in the amount of $115,143.30. All expenses of the sale and ad valorem taxes were paid. The trustee filed a Final Report and Account of Foreclosure Sale, indicating total expenses of $6,301.67 attendant to the sale. This amount included the trustee’s commission of $5,757.17.

The plaintiffs thereafter initiated this civil action on 6 October 1986 seeking recovery of $24,297.55 from the defendants. The plaintiffs’ claims under the provisions of the purchase money notes included $7,202.69 for taxes on the property and the expenses of the foreclosure sale and $17,094.36 for attorneys’ fees. [333]*333After a hearing, the trial court entered an order granting summary judgment for the plaintiffs in the amount sought. The Court of Appeals affirmed the order of the trial court. On 6 April 1988, we allowed the defendants’ petition for discretionary review.

The defendants contend that the trial court erred in awarding the plaintiffs attorneys’ fees and expenses arising out of the default on the purchase money notes and foreclosure of the purchase money deed of trust and argue that such claims are barred by the provisions of N.C.G.S. § 45-21.38. The defendants rely chiefly on Realty Co. v. Trust Co., 296 N.C. 366, 250 S.E. 2d 271 (1980).2

In contrast, the plaintiffs argue that the trial court properly awarded them summary judgment for attorneys’ fees and expenses incurred as a result of foreclosure, because the defendants expressly agreed in the purchase money notes and the deed of trust to pay these expenses. The plaintiffs contend that since these expenses are not part of the unpaid balance of the purchase price secured by the purchase money deed of trust, their claims are not barred by the anti-deficiency statute.

To support their position, the plaintiffs point to Reavis v. Ecological Development, Inc., 53 N.C. App. 496, 281 S.E. 2d 78 (1981). In Reavis, as in this case, the purchase money creditor brought suit, after foreclosure, to recover attorneys’ fees and expenses as expressly provided for in a promissory note. The Court of Appeals concluded that the anti-deficiency statute was intended merely to protect purchasers of real property from losing the property in times of economic distress and, thereafter, “having to pay for the property’s depreciated value.” Id. at 498, 281 S.E. 2d at 79. Therefore, the Court of Appeals concluded that the intent of the legislature was to limit the purchase money creditor to recovery of the property conveyed, but that the limitation applied only to the extent that the purchase money creditor was seeking to recover the outstanding balance of the purchase price. Id. As the attorneys’ fees and expenses associated with foreclosure did not represent a part of the unpaid balance of the purchase price for the property, the Court of Appeals held in Reavis that the [334]*334purchase money creditor could recover them in a separate suit instituted after foreclosure. The Court of Appeals reasoned that this would not amount to holding the purchase money debtor

liable for a decline in the property value representing a deficiency; rather . . . [the debtor], as the party in default, is paying the agreed upon costs of plaintiffs in recovering the depreciated property. The defendant agreed to this arrangement, and should not now be permitted to escape liability. Our Anti-Deficiency Judgment statute does not control recovery in this case.

Id. at 499, 281 S.E. 2d at 80. Therefore, the plaintiffs in Reavis were allowed to recover foreclosure expenses and attorneys’ fees.

In the instant case, the Court of Appeals relied upon Reavis and affirmed summary judgment for the plaintiffs. We reverse.

Here, as in Bamaby v. Boardman — a case decided after the decision of the Court of Appeals in Reavis — we conclude that:

the interpretation of the statute advanced by the defendants and accepted by the Court of Appeals [is] too mechanically literal and restrictive. In Realty Co. v. Trust Co., 296 N.C. 366, 250 S.E. 2d 271 (1979), we pointed out that the intent of the 1933 General Assembly in enacting the [anti-deficiency] statute was “to protect vendees from oppression by vendors and mortgagors from oppression by mortgagees.” 296 N.C. at 371, 250 S.E. 2d 274.

Barnaby v. Boardman, 313 N.C. 565, 568, 330 S.E. 2d 600, 602 (1985). We have also pointed out that:

“[T]he legislature was concerned about the situation in which the vendor finances the sale, and was particularly concerned for the protection of the purchaser in that situation .... [Legislatures do not always see the whole problem, and are not always astute to close all the loopholes .... [T]he policy was one of protecting the purchaser where the vendor did the financing; the North Carolina legislature simply did not do an efficient job of ensuring the effectiveness of the policy.”

Realty Co. v. Trust Co., 296 N.C. at 371, 250 S.E. 2d at 274 (quoting Currie and Lieberman, Purchase-Money Mortgages and [335]*335State Lines: A Study in Conflict-of-Laws Method, 1960 Duke Law Journal 1, 11-12).

We conclude that the decision of the Court of Appeals in the present case fails to give proper weight to the intent of the General Assembly as construed by this Court in Realty Co. and, more recently, in Bamaby. It is true that in each of those cases we dealt with situations in which the plaintiffs were attempting to sue on the note to recover the unpaid balance of the purchase price. It is equally true, as the Court of Appeals noted, that the plaintiffs in the present case seek recovery of attorneys’ fees and expenses associated with the foreclosure of the deed of trust and that those fees and expenses are not a part of the unpaid balance of the purchase price.

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Merritt v. Ridge, 372 S.E.2d 559, 323 N.C. 330, 1988 N.C. LEXIS 602, 1988 WL 103566 (N.C. 1988).

372 S.E.2d 559 (Merritt v. Ridge) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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