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High Point Bank & Trust Co. v. Fowler

Court of Appeals of North Carolina

April 7, 2015

HIGH POINT BANK AND TRUST COMPANY, Plaintiff,
v.
ROBERT L. FOWLER, DELORES J. FOWLER, THOMAS P. BAKER, AND PAMELA P. BAKER, Defendants

Heard in the Court of Appeals December 3, 2014

Guilford County, No. 13 CVS 685.

Roberson Haworth & Reese, P.L.L.C., by Alan B. Powell, Christopher C. Finan, and Matthew A.L. Anderson, for plaintiff-appellee.

Katherine Freeman, PLLC, by Katherine Freeman, for defendant-appellants Robert P. Fowler and Delores J. Fowler.

BRYANT, Judge. Judges DILLON and DIETZ concur.

OPINION

Page 385

Appeal by defendants from order entered 4 February 2014 by Judge Edgar B. Gregory in Guilford County Superior Court.

BRYANT, Judge.

Because defendants' appeal from a trial court order dismissing their appeal is improper, we dismiss this appeal.

On 17 April 2013, in Guilford County Superior Court, plaintiff High Point Bank and Trust Company filed suit against defendants Armadillo Holdings, LLC; Robert L. Fowler; Delores J. Fowler; Thomas P. Baker; and Pamela P. Baker. Plaintiff alleged that Armadillo Holdings, LLC, executed a promissory note for the principal amount of $1,080,000.00 on 31 January 2006. Also on 31 January 2006, defendants Robert L. Fowler, Delores J. Fowler, Thomas P. Baker, and Pamela P. Baker individually executed a Commercial Guaranty for the debt. At the time of the complaint, under the terms and conditions of the promissory note, Armadillo Holdings, LLC, was in default, and was indebted to plaintiff for the sum of $651,251.00 plus interest. Plaintiff sought recovery against defendants jointly and severally.

On 27 June 2013, Robert Fowler and Delores Fowler filed an answer to the complaint. Armadillo Holdings, LLC, filed an answer to the complaint. Thomas P. Baker filed an answer to the complaint. The record does not reflect that Pamela Baker filed an answer to the complaint. On 10 July 2013, default was entered as to defendant Pamela Baker. Also, on 10 July 2013, plaintiff filed a notice of voluntary dismissal as to defendant Armadillo Holdings, LLC.

On 16 September 2013, plaintiff moved for summary judgment. On 27 September, Robert Fowler and Delores Fowler moved to amend their answer to the complaint. They sought to amend their answer to assert the defense that the commercial guaranties were void due to illegality: specifically, that plaintiff's pre-condition of a commercial guarantee prior to making a loan was an act of discrimination in violation of 15 U.S.C. 1691 et seq. and 12 C.F.R. 202.7(d).

On 22 October 2013, following a 7 October hearing before the Honorable Susan E. Bray, Judge presiding, the trial court entered an Order and Judgment granting plaintiff's motion for summary judgment and denying the Fowlers' motion to amend their answer. In its order, the court noted that a petition for relief had been filed on behalf of defendant Thomas Baker in the Middle District of North Carolina pursuant to Chapter 7 of the United States Bankruptcy Code. Accordingly, pursuant to the stay provisions of 11 U.S.C. 362, the civil action against defendant Thomas Baker was stayed. Default, pursuant to Rule ...


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