Heard in the Court of Appeals December 2, 2014
[Copyrighted Material Omitted]
Macon County. No. 13 CVS 69. Macon County. No. 13 CVS 456.
Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Esther E. Manheimer and Lynn D. Moffa, for plaintiff-appellee.
David R. Payne, P.A., by David R. Payne, for defendants-appellants.
STROUD, Judge. Judges CALABRIA and McCULLOUGH concur.
Appeal by defendants Stephen P. Gleaner and Martha K. Gleaner from summary judgment orders entered 12 March 2014 by Judge Bradley Letts
in Superior Court, Macon County.
In this opinion, we consolidate Case Nos. 14-809 and 14-810. Stephen P. Gleaner appeals from the trial court's order granting summary judgment to Macon Bank, Inc. (" plaintiff" ) in Case No. 13 CVS 69, and Stephen P. Gleaner and Martha K. Gleaner (" defendants" ) appeal from the trial court's order granting summary judgment to Macon Bank, Inc. in Case No. 13 CVS 456. Defendants contend that the trial court erred in granting summary judgment in both cases, because they proffered some evidence of (1) the affirmative defense of accord and satisfaction; (2) plaintiff's breach of the duty of good faith and fair dealing; (3) the affirmative defense of equitable estoppel; and (4) defendants' right to offset arising from plaintiff's failure to account for lost rental income. We affirm.
On 18 January 2002, plaintiff, Stephen Gleaner, and William Patterson, Stephen's business partner, executed a promissory note in which Stephen and Patterson borrowed $260,000 from plaintiff (" the 2002 promissory note" ). Stephen and Patterson used the loan proceeds to purchase undeveloped land and a rental house in Highlands, North Carolina (" the Highlands property" ). Plaintiff secured the loan by executing a deed of trust on the Highlands property.
On 20 March 2007, plaintiff, Stephen, and Patterson executed a bridge loan note in which Stephen and Patterson borrowed an additional $150,000 from plaintiff (" the 2007 promissory note" ). Plaintiff secured this loan by executing another deed of trust on the Highlands property. On 11 August 2010, plaintiff, Stephen, and Martha Gleaner, Stephen's wife, agreed to a loan modification of the 2007 promissory note. On 12 August 2010, plaintiff and Stephen agreed to release Patterson from liability on the 2002 promissory note.
On or about 30 January 2013, in Case Number 13 CVS 69, plaintiff sued Stephen for a deficiency judgment on the 2002 promissory note. Plaintiff alleged that Stephen had defaulted on the 2002 promissory note and that it had foreclosed on the Highlands property. On 3 May 2013, Stephen answered and counterclaimed for negligence, lost opportunity, and negligent non-disclosure. On 17 July 2013, plaintiff voluntarily dismissed without prejudice its action against Stephen.
On 17 July 2013, in Case Number 13 CVS 456, plaintiff sued Stephen, Martha, and Patterson for a deficiency judgment on both the 2002 and 2007 promissory notes. Plaintiff alleged that Stephen had defaulted on the 2002 promissory note, that Stephen, Martha, and Patterson had defaulted on the ...