{
  "id": 8523998,
  "name": "FIELDCREST CANNON EMPLOYEES CREDIT UNION, Plaintiff v. KATHY M. MABES, Defendant",
  "name_abbreviation": "Fieldcrest Cannon Employees Credit Union v. Mabes",
  "decision_date": "1994-09-06",
  "docket_number": "No. 9317DC244",
  "first_page": "351",
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  "last_updated": "2023-07-14T22:38:55.005039+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
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  "casebody": {
    "judges": [
      "Judges GREENE and WYNN concur."
    ],
    "parties": [
      "FIELDCREST CANNON EMPLOYEES CREDIT UNION, Plaintiff v. KATHY M. MABES, Defendant"
    ],
    "opinions": [
      {
        "text": "COZORT, Judge.\nPlaintiff Fieldcrest Cannon Employees Credit Union repossessed and sold the car of defendant Kathy M. Mabes. Plaintiff filed a complaint asking for a deficiency judgment on 23 July 1991. Defendant filed a motion for enlargement of time to answer on 23 August 1991; the motion was granted that same day. On 30 September 1991, defendant filed an answer with a counterclaim demanding a jury trial. On 11 August 1992, plaintiff made a motion to strike defendant\u2019s answer and counterclaim. That same day, plaintiff filed a motion for entry of default judgment. On 31 August 1992, the trial court entered an order striking defendant\u2019s answer and counterclaim. A separate order was entered granting an entry of default and default judgment. Defendant appeals, arguing the trial court erred in granting plaintiff\u2019s motion to strike defendant\u2019s answer and counterclaim. We agree with defendant and reverse the trial court\u2019s order.\nIn the case below, the defendant received an enlargement of time for which to file her answer extending the time to 25 September 1991. The answer and counterclaim were not filed until 30 September 1991, five days past the due date. Defendant\u2019s attorney filed an affidavit on 14 August 1992 in opposition to plaintiff\u2019s motion for the default judgment, stating that defendant had typed the document into his word processor and believed the answer had been filed before he left town for a week. He was surprised to discover the answer had not been served. Defendant did not file a motion alleging that failure to timely file the answer or otherwise plead was the result of excusable neglect. The trial court determined the failure to file was not the result of excusable neglect and granted plaintiff\u2019s motion to strike.\nIn Newton v. Tull, 75 N.C. App. 325, 328, 330 S.E.2d 664, 666 (1985), this Court determined the plaintiff had waived its rights to entry of default pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 55(a), since plaintiff had waited until after the defendant had tardily filed an answer to make a motion for entry of default. The defendants in Newton sought, and were granted, an extension of time to file an answer until 6 September. On 19 September, defendants filed an answer and counterclaim. Plaintiff had not moved for entry of default prior to the filing of the answer and counterclaim, but on 12 October, plaintiff moved that the answer be stricken because it was \u201cuntimely\u201d filed. On 31 October, the defendants filed a motion for summary judgment. This Court held the plaintiff had waived the right to an entry of default by waiting until the answer had been filed before seeking to obtain an entry of default. \u201cDefault may not be entered after an answer has been filed, even if the answer is tardily filed.\u201d Id. at 328, 330 N.C. at 666 (citing Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 883 (1981)).\nOur decision reversing the trial court\u2019s order is supported by Peebles v. Moore, 302 N.C. 351, 275 S.E.2d 883 (1981). In Peebles, the North Carolina Supreme Court stated:\nThe portion of G.S. 1A-1, Rule 55, applicable to the facts of the case before us, requires a clerk to make an entry of default \u201cwhen a party . . . has failed to plead . . . .\u201d When a party has answered, it cannot be said that he \u201chas failed to plead . ...\u201d We are unable to perceive anything in this language or in the language of the entire rule, G.S. 1A-1, Rule 55, which alters the established law that defaults may not be entered after answer has been filed, even though the answer be late.\nWe believe that the better reasoned and more equitable result may be reached by adhering to the principle that a default should not be entered, even though technical default is clear, if justice may be served otherwise.\nId. at 356, 275 S.E.2d at 836 (citing McIntosh, North Carolina Practice and Procedure (1970, Phillips Supp.) \u00a7 1670; 3 Barron and Holtzoff, Federal Practice and Procedure (Wright ed., 1961) \u00a7 1216).\nAs in Newton and Peebles, we find the plaintiff lost its right to an entry of default, by failing to take action until defendant\u2019s answer and counterclaim were filed. Furthermore, we find no prejudice resulting from the late filing. As such, we find justice will be better served in this case by allowing the parties to fully litigate their claims. We therefore reverse the trial court\u2019s order and remand for a trial on the matter.\nTurning now to an issue which may arise on remand, we address whether the trial court erred in denying defendant the right to offer evidence as to the value of the repossessed car. The trial court refused to allow defendant to put on any evidence as to the value of the car at the time of repossession. Defendant contends the price received for the collateral is a factor to be considered in determining if the sale of an item was in a commercially reasonable manner. We agree. At trial, the court should permit defendant the opportunity to present evidence of the value of the car at the time it was repossessed to aid in the determination of damages.\nReversed and remanded for trial.\nJudges GREENE and WYNN concur.",
        "type": "majority",
        "author": "COZORT, Judge."
      }
    ],
    "attorneys": [
      "C. Orville Light for defendant appellant.",
      "No brief filed for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "FIELDCREST CANNON EMPLOYEES CREDIT UNION, Plaintiff v. KATHY M. MABES, Defendant\nNo. 9317DC244\n(Filed 6 September 1994)\n1. Judgments \u00a7 157 (NCI4th)\u2014 late answer \u2014 motion for default after answer \u2014 no prejudice from late answer\u2014 default judgment reversed\nA default judgment was reversed and the matter remanded where plaintiff filed a complaint requesting a deficiency judgment on a repossessed car on 23 July 1991; defendant requested and was given an enlargement of time to answer to 25 September 1991; the answer and counterclaim were not filed until 30 September 1991; plaintiff filed a motion to strike the answer and counterclaim and for entry of default judgment on 11 August 1992; defendant\u2019s attorney filed an affidavit in opposition to plaintiff\u2019s motion for default stating that he had typed the document into his word processor and believed that it had been filed before he left town for a week, and was surprised to discover that the answer had not been served; and the trial court determined that the failure to file was not the result of excusable neglect and granted plaintiff\u2019s motion to strike. Plaintiff lost its right to an entry of default by failing to take action until defendant\u2019s answer and counterclaim were filed and there was no prejudice from the late filing.\nAm Jur 2d, Judgments \u00a7 1169.\n2. Evidence and Witnesses \u00a7 2118 (NCI4th)\u2014 repossession of automobile \u2014 evidence of value \u2014 admissible\nEvidence of the value of a repossessed car should have been admissible as a factor to be considered in determining if the sale of the automobile was in a commercially reasonable manner.\nAm Jur 2d, Expert and Opinion Evidence \u00a7\u00a7 317 et seq.\nAppeal by defendant from orders entered 31 August 1992 and 21 October 1992, by Judge Janeice B. Williams in Rockingham County District Court. Heard in the Court of Appeals 6 January 1994.\nC. Orville Light for defendant appellant.\nNo brief filed for plaintiff appellee."
  },
  "file_name": "0351-01",
  "first_page_order": 381,
  "last_page_order": 384
}