{ "id": 11889873, "name": "RANDOLPH H. TRULL, Plaintiff v. CENTRAL CAROLINA BANK & TRUST RICHARD H. CRONK, JR.; PLAYER I, a North Carolina General Partnership and KITTY PLAYER BECK, Defendants", "name_abbreviation": "Trull v. Central Carolina Bank & Trust", "decision_date": "1996-11-19", "docket_number": "No. COA95-1288", "first_page": "486", "last_page": "494", "citations": [ { "type": "official", "cite": "124 N.C. App. 486" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "323 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564955 ], "opinion_index": -1, "case_paths": [ "/nc/323/0330-01" ] }, { "cite": "73 ALR3d 515", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 6, "opinion_index": -1 }, { "cite": "405 S.E.2d 776", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "778" } ], "opinion_index": 0 }, { "cite": "103 N.C. App. 518", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521904 ], "year": 1991, "pin_cites": [ { "page": "520-521" } ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0518-01" ] }, { "cite": "378 S.E.2d 566", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "570" } ], "opinion_index": 0 }, { "cite": "93 N.C. App. 537", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8528231 ], "year": 1989, "pin_cites": [ { "page": "544" } ], "opinion_index": 0, "case_paths": [ "/nc-app/93/0537-01" ] }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "655" }, { "page": "655" }, { "page": "656" }, { "page": "656" } ], "opinion_index": 0 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "226" }, { "page": "227-28" }, { "page": "228" }, { "page": "228" } ], "opinion_index": 0, "case_paths": [ "/nc-app/70/0221-01" ] }, { "cite": "162 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "486" } ], "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "year": 1968, "pin_cites": [ { "page": "263" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "372 S.E.2d 559", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "563" }, { "page": "564", "parenthetical": "Whichard, J., dissenting" } ], "opinion_index": 0 }, { "cite": "169 S.E.2d 480", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "481" } ], "opinion_index": 0 }, { "cite": "6 N.C. App. 179", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547285 ], "year": 1969, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/nc-app/6/0179-01" ] }, { "cite": "432 S.E.2d 394", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1993, "pin_cites": [ { "page": "397" }, { "page": "398" }, { "page": "397" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522078 ], "weight": 3, "year": 1993, "pin_cites": [ { "page": "372" }, { "page": "373" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0367-01" ] }, { "cite": "266 S.E.2d 812", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "814" }, { "page": "817" } ], "opinion_index": 0 }, { "cite": "300 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561053 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "289" }, { "page": "294" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0286-01" ] }, { "cite": "323 N.C. 330", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2564955 ], "weight": 3, "pin_cites": [ { "page": "336" }, { "page": "338" } ], "opinion_index": 0, "case_paths": [ "/nc/323/0330-01" ] }, { "cite": "323 S.E.2d 922", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "312 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4757614, 4751602, 4754239, 4750583, 4751711 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc/312/0621-04", "/nc/312/0621-02", "/nc/312/0621-01", "/nc/312/0621-05", "/nc/312/0621-03" ] }, { "cite": "N.C. Gen. Stat. \u00a7 6-21.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "319 S.E.2d 650", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "656" } ], "opinion_index": 1 }, { "cite": "70 N.C. App. 221", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521343 ], "year": 1984, "pin_cites": [ { "page": "228" } ], "opinion_index": 1, "case_paths": [ "/nc-app/70/0221-01" ] } ], "analysis": { "cardinality": 715, "char_count": 20087, "ocr_confidence": 0.744, "pagerank": { "raw": 3.846586955064104e-07, "percentile": 0.8994283064379429 }, "sha256": "67d82983fabd417e511a8994b44e361f9b1f3522531b0dc8a06baf503f167bc4", "simhash": "1:5769c573047cd068", "word_count": 3215 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McGEE concurs.", "Judge WALKER concurs in part and dissents in part." ], "parties": [ "RANDOLPH H. TRULL, Plaintiff v. CENTRAL CAROLINA BANK & TRUST RICHARD H. CRONK, JR.; PLAYER I, a North Carolina General Partnership and KITTY PLAYER BECK, Defendants" ], "opinions": [ { "text": "EAGLES, Judge.\nThe general rule in North Carolina has long been that a party cannot recover attorneys\u2019 fees \u201cunless such a recovery is expressly authorized by statute.\u201d Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 289, 266 S.E.2d 812, 814 (1980). N.C.G.S. 6-21.2 allows an award of attorneys\u2019 fees in actions to enforce obligations owed under \u201can evidence of indebtedness\u201d that itself provides for the payment of attorneys\u2019 fees. RC Associates v. Regency Ventures, Inc., 111 N.C. App. 367, 372, 432 S.E.2d 394, 397 (1993). N.C.G.S. 6-21.2 provides, in pertinent part:\nObligations to pay attorneys\u2019 fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity . . .\nThe promissory note here provides for the payment of \u201creasonable attorneys\u2019 fees incurred by the holder in enforcing the agreements of the Borrower(s).\u201d Because the note provides for \u201creasonable attorneys\u2019 fees\u201d without referring to any specific percentage of fees to be paid, N.C.G.S. 6-21.2(2) applies. N.C.G.S. 6-21.2(2) provides:\n(2) If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys\u2019 fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the \u201coutstanding balance\u201d owing on said note, contract or other evidence of indebtedness.\nI.\nPlaintiff contends that the trial court\u2019s award of attorneys\u2019 fees was improper. Plaintiff first argues that, despite the language in the note, CCB is not entitled to attorneys\u2019 fees under the statute because CCB was unsuccessful in its deficiency action against Trull. G.S. 6-21.2 does not require that a party seeking attorneys\u2019 fees under the statute qualify as a \u201cprevailing party\u201d in litigation. Although the General Assembly included this requirement in other statutes providing for attorneys\u2019 fees, the text of G.S. 6-21.2 does not state this requirement. (N.C.G.S. 75-16.1 (1994) limits recovery of attorneys\u2019 fees to the \u201cprevailing party\u201d). The Court \u201cmay not, under the guise of judicial interpretation, interpolate provisions which are wanting in the statute and thereupon adjudicate the rights of the parties thereunder.\u201d Simmons v. Wilder, 6 N.C. App. 179, 181, 169 S.E.2d 480, 481 (1969). Furthermore, the purpose of G.S. 6-21.2 is to allow the debtor a last chance to pay his outstanding balance and avoid litigation, not to reward the prevailing party with the reimbursement of his costs in prosecuting or defending the action. RC Associates v. Regency Ventures, Inc., 111 N.C. App. 367, 373- 374, 432 S.E.2d 394, 398 (1993). To limit the operation of G.S. 6-21.2 to successful litigants would require this court to judicially amend the existing statute. We believe that to do so would improperly invade the province of the General Assembly.\nTrull also contends that G.S. 6-21.2 should not apply to this action because the statute requires that the attorneys\u2019 fees be \u201ccollectible as part of such debt\u201d and that CCB\u2019s failure in its deficiency action precludes the collection of a debt under the statute. CCB\u2019s counterclaim for the deficiency was an ancillary action to the actual foreclosure proceeding. It is undisputed that as of 8 April 1993 Trull owed a debt of $672,168.48 to CCB. CCB\u2019s legal actions were in pursuit of payment of the debt evidenced by the same Promissory Note which contained the provision for \u201creasonable attorneys\u2019 fees.\u201d\nPlaintiff Trull further contends that the trial court\u2019s award of attorneys\u2019 fees should be precluded by the Supreme Court\u2019s decision in Merritt v. Edwards Ridge which held that the anti-deficiency statute applying exclusively, to purchase money notes, N.C.G.S. 45-21.38 (1991), precludes the recovery of attorneys\u2019 fees under G.S. 6-21.2. 323 N.C. 330, 372 S.E.2d 559 (1988). The decision in Merritt follows the legislative intent behind G.S. 45-21.38, \u201cto protect a vendor\u2019s assignee, who would not know the nature of the transaction.\u201d Childers v. Parker\u2019s Inc., 274 N.C. 256, 263, 162 S.E.2d 481, 486 (1968). It is well established that under this anti-deficiency statute, the purchase money creditor is strictly limited upon foreclosure and sale to the proceeds which stand in place of the land. Merritt, 323 N.C. at 336, 372 S.E.2d at 563. Significantly, the note at issue here is not a purchase money note. Trull defended CCB\u2019s action for the deficiency under G.S. 45-21.36, using the reasonable value defense, not under G.S. 45-21.38. In fact, Trull\u2019s obligation to CCB arose from a commercial land transaction. Expanding the decision in Merritt to this non-purchase money, commercial transaction would \u201cdeprive [s] the [defendants] of the benefits of a bargain, fairly and properly entered, which violates no established public policy.\u201d Merritt, 323 N.C. at 338, 372 S.E.2d at 564 (Whichard, J., dissenting).\nII.\nPlaintiff next contends that the trial court\u2019s calculation of attorneys\u2019 fees was improper and contrary to law. We disagree. When the trial court determines an award of attorneys\u2019 fees is appropriate under the statute, the amount of attorneys\u2019 fees awarded lies within the discretion of the trial court. Coastal Production v. Goodson Farms, 70 N.C. App. 221, 226, 319 S.E.2d 650, 655 (1984). Therefore, the award of attorneys\u2019 fees is conclusive absent an error of law or abuse of discretion by the trial court. Id.\nN.C.G.S. 6-21.2(2) expressly authorizes an award of attorneys\u2019 fees of 15% of the \u201coutstanding balance\u201d in suits to collect any \u201cevidence of indebtedness,\u201d when such evidence of indebtedness is collected \u201cby or through an attorney at law after maturity.\u201d The term \u201cevidence of indebtedness\u201d refers to \u201cany printed or written instrument, signed or otherwise executed by the obligor(s), which evidences on its face a legally enforceable obligation to pay money.\u201d Enterprises, Inc. v. Equipment Co., 300 N.C. 286, 294, 266 S.E.2d 812, 817 (1980). The promissory note involved here fits that description.\nThe term \u201coutstanding balance\u201d is defined by N.C.G.S. 6-21.2(3) as \u201cthe principal and interest owing at the time suit is instituted to enforce any security agreement securing payment of the debt and/or to collect said debt.\u201d N.C.G.S. 6-21.2(3) (1986) (emphasis added). CCB retained an attorney to collect and enforce the debt on 16 April 1993, instituted foreclosure proceedings on the Wake County real property on 30 April 1993, and liquidated Trull\u2019s personal property collateral between 1 June and 24 June 1993. The actual deficiency action was ancillary to CCB\u2019s other actions to enforce the debt. The trial court calculated the attorneys\u2019 fees by applying the statutory percentage to the balance of the note on 8 April 1993. That valuation date falls within twenty two days of the commencement of foreclosure proceedings. We find no abuse of the trial court\u2019s discretion in awarding attorneys\u2019 fees at 15% of the value of the note, on this date.\nPlaintiff also contends that the court erred in calculating attorneys\u2019 fees in this case by including fees incurred in the foreclosure action. In prior decisions regarding the application of N.C.G.S. 6-21.2, this Court has stated that \u201cwhen other actions are reasonably related to the collection of the underlying note sued upon, attorneys\u2019 fees incurred therein may properly be awarded under G.S. 6-21.2.\u201d Coastal Production v. Goodson Farms, 70 N.C. App. 221, 227-28, 319 S.E.2d 650, 655 (1984). In Coastal, this Court determined that attorney fees incurred in bankruptcy, receivership, and foreclosure actions were sufficiently connected to the collection of the note to satisfy the statutory requirement that the fees be \u201ccollected by or through an attorney at law.\u201d 70 N.C. App. at 228, 319 S.E.2d at 656; N.C.G.S. 6-21.2 (1986). We noted that in some cases ancillary claims may be necessary to collect and enforce the note and that fees incurred in pursuing those ancillary claims would not be barred by the statute. 70 N.C. App. at 228, 319 S.E.2d at 656. \u201cReasonableness, not arbitrary classification of attorney activity, is the key factor under all our attorneys\u2019 fees statutes.\u201d Id. Fees incurred by CCB\u2019s attorneys in the foreclosure proceeding or in any action \u201cconnected\u201d with the collection of the debt owed by Trull are permissible under the statute.\nPlaintiff additionally argues that an award of attorneys\u2019 fees to CCB under these circumstances amounts to a windfall, in that the statutory 15% exceeds the actual attorneys\u2019 fees incurred by CCB. The promissory note at issue in this case provides for \u201creasonable attorneys\u2019 fees\u201d and is therefore subject to the provisions in G.S. 6-21.2 subsection (2), not subsection (1). Under subsection (1) an award of attorneys\u2019 fees must be supported by evidence and findings of fact supporting the reasonableness of the award, however, subsection (2) has predetermined that 15% is a reasonable amount. Barker v. Agee, 93 N.C. App. 537, 544, 378 S.E.2d 566, 570 (1989); RC Associates v. Regency Ventures, Inc., 111 N.C. App. 367, 373, 432 S.E.2d 394, 397 (1993). G.S. 6-21.2(2) expressly provides that when a contract authorizing attorneys\u2019 fees does not specify the fee percentage then it shall be construed to mean 15% of the \u201coutstanding balance\u201d owed on the instrument. Nucor Gorp. v. General Bearing Corp., 103 N.C. App. 518, 520-521, 405 S.E.2d 776, 778 (1991). In this case, the trial court did not err by calculating the fee awarded in accordance with the statutory mandate.\nAffirmed.\nJudge McGEE concurs.\nJudge WALKER concurs in part and dissents in part.", "type": "majority", "author": "EAGLES, Judge." }, { "text": "Judge Walker\nconcurring in part and dissenting in part.\nI agree with the majority\u2019s decision that the defendant was entitled to an award of attorneys\u2019 fees under N.C. Gen. Stat. \u00a7 6-21.2(2). However, I disagree that attorneys\u2019 fees should have been allowed on the $158,767.66 which the defendant received from the sale of the plaintiff\u2019s securities.\nIn Coastal Production v. Goodson Farms, 70 N.C. App. 221, 228, 319 S.E.2d 650, 656, review denied, 312 N.C. 621, 323 S.E.2d 922 (1984), this Court found that, \u201c. . . the evidence supports the court\u2019s findings that the bankruptcy, foreclosure and receivership actions and other legal activity undertaken by the plaintiff\u2019s attorney were \u2018connected\u2019 to the collection of the note. ...\u201d Additionally, N.C. Gen. Stat. \u00a7 6-21.2 provides for attorneys\u2019 fees \u201c. . . upon any note . . .collected by or through an attorney. ...\u201d\nI conclude from the language of Coastal and this statute that in order to receive attorneys\u2019 fees in connection with the collection of a debt, there must be some activity on the part of the attorney. Although the sale of the plaintiff\u2019s securities in this case may be \u201cconnected\u201d to the collection of the debt owed, there is no evidence that there was any activity on the part of defendant\u2019s attorney with respect to this sale. Therefore, the calculation of attorneys\u2019 fees should not have been based on the $158,767.66 proceeds from the sale of securities. From this portion of the majority opinion, I respectfully dissent.", "type": "concurring-in-part-and-dissenting-in-part", "author": "Judge Walker" } ], "attorneys": [ "Bums, Day & Presnell, P.A., by Lacy M. Presnell, III and Susan F. Vick, for plaintiff-appellant.", "H. Spencer Barrow, for defendant-appellee Central Carolina Bank & Trust Company." ], "corrections": "", "head_matter": "RANDOLPH H. TRULL, Plaintiff v. CENTRAL CAROLINA BANK & TRUST RICHARD H. CRONK, JR.; PLAYER I, a North Carolina General Partnership and KITTY PLAYER BECK, Defendants\nNo. COA95-1288\n(Filed 19 November 1996)\n1. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 attorneys\u2019 fees\u2014 deficiency action\nThe trial court did not err by awarding attorneys\u2019 fees to defendant-bank where the bank was unsuccessful in a deficiency action against plaintiff on a non-purchase money note. N.C.G.S. \u00a7 6-21.2 does not require that a party seeking attorneys\u2019 fees under the statute qualify as a \u201cprevailing party\u201d in litigation. To limit the operation of the statute to successful litigants would require the court to judicially amend the existing statute.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\n2. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 attorneys\u2019 fees\u2014 ancillary action\nThe trial court did not err by awarding attorneys\u2019 fees to defendant-bank arising from the attempted collection of a non-purchase money note where plaintiff contended that N.C.G.S. \u00a7 6-21.2 should not apply to this action because defendant\u2019s failure in its deficiency action precludes the collection of a debt under the statute. Defendant\u2019s legal actions were in pursuit of payment of a debt evidenced by the same promissory note which contained the provision for reasonable attorneys\u2019 fees.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\n3. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 non-purchase money note\nA trial court\u2019s award of attorneys\u2019 fees arising from the attempted collection of a note was not precluded under Merritt v. Edwards Ridge, 323 N.C. 330. The note at issue here is not a purchase money note; expanding the decision in Merritt to this non-purchase money, commercial transaction would deprive defendants of the benefits of a bargain, fairly and properly entered, which violates no established public policy.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\n4. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 attorneys\u2019 fees\u2014 calculation of\nThe trial court did not abuse its discretion in its calculation of attorneys\u2019 fees in an action arising from the collection of a non-purchase money note where defendant lost a deficiency action. That action was ancillary to defendant\u2019s other actions to enforce the debt. The trial court calculated the attorneys\u2019 fees by applying the statutory percentage to the balance of the note on a date which falls within twenty-two days of the commencement of foreclosure proceedings.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\n5. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 attorneys\u2019 fees\u2014 calculation of\nThe trial court did not err in calculating attorneys\u2019 fees in an action to collect a non-purchase money note by including fees incurred in the foreclosure action. Fees incurred by the bank\u2019s attorneys in the foreclosure proceeding or in any action connected with the collection of the debt axe permissible under the N.C.G.S. \u00a7 6-21.2.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\n6. Costs \u00a7 33 (NCI4th)\u2014 debt collection \u2014 attorneys\u2019 fees\u2014 15% reasonable amount\nAn award of attorneys\u2019 fees to defendant bank in an action on a non-purchase money note was not a windfall where plaintiff argued that the statutory 15% exceeded the actual attorneys\u2019 fees. The promissory note at issue provides for \u201creasonable attorneys\u2019 fees\u201d and is therefore subject to the provisions in N.C.G.S. \u00a7 6-21.2 subsection (2), not subsection (1). Subsection (2) has predetermined that 15% is a reasonable amount.\nAm Jur 2d, Costs \u00a7\u00a7 5, 57-70.\nValidity of statute allowing attorneys\u2019 fees to successful claimant but not to defendant, or vice versa. 73 ALR3d 515.\nJudge Walker concurring in part and dissenting in part.\nAppeal by plaintiff from order entered 31 July 1995 by Judge Narley L. Cashwell in Wake County Superior Court. Heard in the Court of Appeals 28 August 1996.\nThis case involves a lender\u2019s statutory right to attorneys\u2019 fees under N.C.G.S. 6-21.2.\nOn 6 August 1990, the plaintiff, Randolph H. Trull, executed a promissory note in the principal sum of $650,000 representing a debt owed by plaintiff to defendant, Central Carolina Bank, secured by a deed of trust on real property in Wake County and by plaintiff\u2019s personal property pledged to defendant by a security agreement. The promissory note was not a purchase money note. Paragraph 4 of the promissory note provides: \u201c[T]he Borrower(s) agree(s) to pay expenses and costs of collection and reasonable attorneys\u2019 fees incurred by the holder in enforcing the agreements of the Borrower (s).\u201d\nTrull defaulted in payment on the Note. On 8 April 1993, CCB notified Trull by certified mail that the loan was in default and demanded payment in full. The letter included notice of CCB\u2019s intent to enforce a claim for attorneys\u2019 fees in accordance with G.S. 6-21.2. As of 8 April 1993 the outstanding balance of principal and interest owed on the Note was $672,168.48.\nOn 15 April 1993, Trull brought suit against CCB seeking rescission of Trull\u2019s purchase of the Wake County real property, rescission of the promissory note, and return of all the collateral and security held by defendant.\nOn 16 April 1993, CCB employed an attorney to defend Trull\u2019s claim and to enforce and collect the debt owed by Trull on the promissory note. CCB instituted foreclosure proceedings pursuant to the deed of trust on the Wake County real property on 30 April 1993. Trull obtained a preliminary injunction staying the foreclosure pending disposition of his lawsuit. On 1, 7, 21, and 24 June 1993, CCB liquidated all of Trull\u2019s personal property collateral subject to the security agreement. CCB applied the proceeds of that sale, $158,767.66, to reduce Trull\u2019s outstanding debt on the promissory note.\nOn 17 June 1993, CCB filed an Answer denying the allegations in Trull\u2019s Complaint and counterclaimed for the outstanding principal and interest due on the promissory note and reasonable attorneys\u2019 fees. CCB then moved for summary judgment as to all of Trull\u2019s claims against CCB. On 13 September 1993, Wake County Superior Court Judge Stephens granted CCB\u2019s motion for summary judgment, dismissed all of Trull\u2019s claims against CCB, and vacated prior orders to stay the foreclosure proceedings. Trull appealed Judge Stephens\u2019 ruling to this Court and this Court affirmed Judge Stephens\u2019 order on 6 December 1994. The Supreme Court denied Trull\u2019s petition for discretionary review on 9 February 1995.\nOn 18 November 1993, CCB foreclosed on the Wake County real property. CCB purchased the property at foreclosure for $350,000.00 and credited the balance due on the promissory note for that amount. This amount, combined with the proceeds from the earlier sale of Trull\u2019s personal property collateral, satisfied $508,767.66 of the $672,168.48 balance owing on the promissory note, leaving a deficit of $163,400.82. On 16 February 1994, CCB filed a supplemental counterclaim seeking the remaining balance due under the promissory note. That counterclaim included a claim for $99,588.35 in attorneys\u2019 fees accrued in the collection and foreclosure action. Trull defended CCB\u2019s action for the deficiency under the North Carolina Anti-Deficiency Statute, G.S. 45-21.36. In the deficiency action, a Wake County jury determined that the Wake County real property subject to the deed of trust was fairly worth $550,000.00 at the time of the foreclosure sale. The Wake County Superior Court then entered judgment for Trull, stating that Trull owed no deficiency to CCB and CCB was entitled to recover nothing by way of deficiency. The court reserved ruling on CCB\u2019s request for attorneys\u2019 fees until a later time.\nOn 31 July 1995, Judge Narley L. Cashwell entered an order awarding attorneys\u2019 fees to CCB in the amount of $100,825.27, representing 15% of $672,168.48, the balance owed by Trull to CCB on 8 April 1993. CCB submitted evidence of attorneys\u2019 fees accrued prior to the 18 November 1993 foreclosure action totalling $94,588.35, including $5,785.35 in attorneys\u2019 fees directly related to the foreclosure sale.\nPlaintiff now appeals the award of attorneys\u2019 fees to CCB.\nBums, Day & Presnell, P.A., by Lacy M. Presnell, III and Susan F. Vick, for plaintiff-appellant.\nH. Spencer Barrow, for defendant-appellee Central Carolina Bank & Trust Company." }, "file_name": "0486-01", "first_page_order": 524, "last_page_order": 532 }