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Wells Fargo Bank, N.A. v. Corneal

Court of Appeals of North Carolina

December 16, 2014

WELLS FARGO BANK, N.A., successor by merger with WACHOVIA BANK, NATIONAL ASSOCIATION, Plaintiff,
v.
JOHN M. CORNEAL; and wife, JORENE S. PROPER, and SUBSTITUTE TRUSTEE SERVICES, INC., Substitute Trustee, Defendants

Heard in the Court of Appeals: October 23, 2014.

Appeal by defendants from order entered 18 February 2014 by Judge Walter H. Godwin, Jr. in Superior Court, Dare County, No. 13 CVS 361.

Womble Carlyle Sandridge & Rice by Jesse A. Schaefer, for plaintiff-appellee.

David R. Dixon, for defendants-appellants.

STROUD, Judge. Judges GEER and BELL concur.

OPINION

Page 375

STROUD, Judge.

Page 376

John M. Corneal and his wife, Jorene S. Proper, (" defendants" ) appeal from the trial court's order granting a motion to dismiss their counterclaims. Finding no error, we affirm the trial court's order.

I. Background

On or about 5 December 2008, defendants and Wachovia Bank, National Association executed a note, in which defendants promised to pay a principal amount of $389,890. The note's payment schedule includes a balloon payment on 4 December 2011, the maturity date. The parties secured the note by a deed of trust on a parcel of Hatteras real property owned by Corneal. Wells Fargo Bank, N.A. (" plaintiff" ) is Wachovia Bank's successor by merger.

Defendants failed to make the balloon payment upon maturity of the note. On or about 27 January 2012, plaintiff notified defendants of their right to cure the default. On or about 27 March 2012, plaintiff mailed defendants a notice of foreclosure.

On 10 July 2013, plaintiff sued defendants for breach of contract and judicial foreclosure. On 30 September 2013, defendants answered, raised affirmative defenses, and brought counterclaims for violations of the Unfair and Deceptive Trade Practices Act (" UDTPA" ) and the North Carolina Debt Collection Act (" NCDCA" ). See N.C. Gen. Stat. ch. 75 (2013). On 2 December 2013, plaintiff moved to dismiss defendants' counterclaims pursuant to North Carolina Rule of Civil Procedure 12(b)(6). See N.C. Gen. Stat. ยง 1A-1, Rule 12(b)(6) (2013). On 17 February 2014, the trial court held a hearing on ...


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