{ "id": 8320486, "name": "WAYNE SHEPARD and ROSEMARY SANDERS SHEPARD, Plaintiffs v. OCWEN FEDERAL BANK, FSB and WELLS FARGO BANK MINNESOTA, and DONALD T. RITTER, in his capacity as Trustee, Defendants", "name_abbreviation": "Shepard v. Ocwen Federal Bank, FSB", "decision_date": "2005-08-16", "docket_number": "No. COA04-1634", "first_page": "475", "last_page": "486", "citations": [ { "type": "official", "cite": "172 N.C. App. 475" } ], "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": "380 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "162" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527156 ], "weight": 2, "year": 1989, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0340-01" ] }, { "cite": "267 S.E.2d 598", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1980, "pin_cites": [ { "page": "600" } ], "opinion_index": 0 }, { "cite": "47 N.C. App. 646", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551442 ], "weight": 2, "year": 1980, "pin_cites": [ { "page": "650" } ], "opinion_index": 0, "case_paths": [ "/nc-app/47/0646-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-10.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "157-58" } ], "opinion_index": 0 }, { "cite": "409 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1991, "pin_cites": [ { "page": "893" }, { "page": "893-94" }, { "page": "895" } ], "opinion_index": 0 }, { "cite": "330 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512142 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/330/0153-01" ] }, { "cite": "26 S.E. 781", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 8, "year": 1897, "pin_cites": [ { "page": "781" }, { "page": "781-82" }, { "page": "781" }, { "page": "894" } ], "opinion_index": 0 }, { "cite": "120 N.C. 286", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657230 ], "weight": 2, "year": 1897, "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/120/0286-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(g)" } ], "opinion_index": 0 }, { "cite": "417 S.E.2d 251", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "331 N.C. 284", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2500290, 2499842, 2497925, 2497100, 2502519 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/331/0284-03", "/nc/331/0284-01", "/nc/331/0284-02", "/nc/331/0284-04", "/nc/331/0284-05" ] }, { "cite": "412 S.E.2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "896" } ], "opinion_index": 0 }, { "cite": "105 N.C. App. 191", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521963 ], "pin_cites": [ { "page": "195" } ], "opinion_index": 0, "case_paths": [ "/nc-app/105/0191-01" ] }, { "cite": "411 S.E.2d 610", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "330 N.C. 610", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512254 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/nc/330/0610-01" ] }, { "cite": "403 S.E.2d 568", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "570", "parenthetical": "\"As an interpretation of state law by a federal court, this holding is not binding on us; however, we find its analysis persuasive.\"" } ], "opinion_index": 0 }, { "cite": "102 N.C. App. 772", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525745 ], "year": 1991, "pin_cites": [ { "page": "775", "parenthetical": "\"As an interpretation of state law by a federal court, this holding is not binding on us; however, we find its analysis persuasive.\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/102/0772-01" ] }, { "cite": "551 S.E.2d 438", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "353 N.C. 729", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135619, 135982, 135568, 135706, 135866 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0729-01", "/nc/353/0729-05", "/nc/353/0729-04", "/nc/353/0729-02", "/nc/353/0729-03" ] }, { "cite": "546 S.E.2d 632", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "638" } ], "opinion_index": 0 }, { "cite": "143 N.C. App. 361", "category": "reporters:state", "reporter": "N.C. 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App. 498", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527913 ], "weight": 3, "pin_cites": [ { "page": "501" }, { "page": "501" }, { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0498-01" ] }, { "cite": "551 S.E.2d 483", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "485" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 706", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11439473 ], "year": 2001, "pin_cites": [ { "page": "708" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0706-01" ] }, { "cite": "471 S.E.2d 69", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "343 N.C. 305", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 798896, 798810, 798767, 798951 ], "year": 1996, "opinion_index": 0, "case_paths": [ "/nc/343/0305-03", "/nc/343/0305-02", "/nc/343/0305-01", "/nc/343/0305-04" ] }, { "cite": "464 S.E.2d 708", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "710", "parenthetical": "quotation omitted" }, { "page": "710", "parenthetical": "\"Ordinarily, the period of the statute of limitations begins to run when the plaintiff's right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed.\"" } ], "opinion_index": 0 }, { "cite": "121 N.C. App. 156", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916063 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "158-59", "parenthetical": "quotation omitted" }, { "page": "158-59" } ], "opinion_index": 0, "case_paths": [ "/nc-app/121/0156-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 0 }, { "cite": "472 S.E.2d 778", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "780" }, { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "344 N.C. 133", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 867531 ], "year": 1996, "pin_cites": [ { "page": "136" } ], "opinion_index": 0, "case_paths": [ "/nc/344/0133-01" ] }, { "cite": "333 S.E.2d 222", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "224" } ], "opinion_index": 0 }, { "cite": "314 N.C. 276", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4691903 ], "year": 1985, "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0276-01" ] }, { "cite": "347 S.E.2d 743", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "745", "parenthetical": "citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)" }, { "page": "745", "parenthetical": "Atrial court's grant of a 12(h)(6) motion to dismiss is proper when some fact disclosed in the complaint necessarily defeats plaintiff's claim." } ], "opinion_index": 0 }, { "cite": "318 N.C. 172", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4732963 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "175", "parenthetical": "citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)" }, { "page": "175" } ], "opinion_index": 0, "case_paths": [ "/nc/318/0172-01" ] }, { "cite": "354 S.E.2d 757", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "758" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 338", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12169904 ], "year": 1987, "pin_cites": [ { "page": "340" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0338-01" ] }, { "cite": "489 S.E.2d 880", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "888", "parenthetical": "quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)" } ], "opinion_index": 0 }, { "cite": "347 N.C. 97", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 551301 ], "year": 1997, "pin_cites": [ { "page": "111-12", "parenthetical": "quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)" } ], "opinion_index": 0, "case_paths": [ "/nc/347/0097-01" ] }, { "cite": "557 S.E.2d 528", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "opinion_index": 0 }, { "cite": "354 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 138507 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/354/0568-01" ] }, { "cite": "403 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "471" } ], "opinion_index": 0 }, { "cite": "328 N.C. 689", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2541726 ], "year": 1991, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0689-01" ] }, { "cite": "551 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "181" } ], "opinion_index": 0 }, { "cite": "145 N.C. App. 314", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11437314 ], "pin_cites": [ { "page": "316-17" } ], "opinion_index": 0, "case_paths": [ "/nc-app/145/0314-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 24-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 5, "pin_cites": [ { "page": "et seq." }, { "page": "et seq." }, { "page": "et seq." }, { "page": "et seq." }, { "page": "et seq." } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 24-2.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 1 }, { "cite": "541 S.E.2d 474", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "481" } ], "opinion_index": 1 }, { "cite": "141 N.C. App. 177", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440617 ], "year": 2000, "pin_cites": [ { "page": "187" } ], "opinion_index": 1, "case_paths": [ "/nc-app/141/0177-01" ] }, { "cite": "101 F.3d 334", "category": "reporters:federal", "reporter": "F.3d", "case_ids": [ 7634191 ], "year": 1996, "pin_cites": [ { "page": "342" } ], "opinion_index": 1, "case_paths": [ "/f3d/101/0334-01" ] }, { "cite": "380 S.E.2d 160", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "162", "parenthetical": "citing Haanebrink v. Meyer, 47 N.C. App. 646, 267 S.E.2d 598 (1980)" } ], "opinion_index": 1 }, { "cite": "94 N.C. App. 340", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527156 ], "year": 1989, "pin_cites": [ { "page": "342", "parenthetical": "citing Haanebrink v. Meyer, 47 N.C. 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Gen. Stat. \u00a7 24-10", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "pin_cites": [ { "page": "(g)" } ], "opinion_index": 1 }, { "cite": "87 Fed. Appx. 314", "category": "reporters:federal", "reporter": "Fed. Appx.", "year": 2004, "pin_cites": [ { "parenthetical": "unpublished" } ], "opinion_index": 1 }, { "cite": "313 F. Supp. 2d 544", "category": "reporters:federal", "reporter": "F. Supp. 2d", "case_ids": [ 9248022 ], "year": 2003, "opinion_index": 1, "case_paths": [ "/f-supp-2d/313/0544-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-53", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "(2)" } ], "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "N.C. Gen. Stat. \u00a7 24-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "pin_cites": [ { "page": "et seq." } ], "opinion_index": 1 } ], "analysis": { "cardinality": 1062, "char_count": 26642, "ocr_confidence": 0.757, "pagerank": { "raw": 1.287384995503767e-07, "percentile": 0.6190185219292708 }, "sha256": "151cfe8f9fef650a4cdd81a37870aa83b50bc4ce2b7c647da3ef0db98288bf4f", "simhash": "1:2b685daa767c365a", "word_count": 4435 }, "last_updated": "2023-07-14T22:22:54.702952+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge McCULLOUGH concurs.", "Judge BRYANT dissents." ], "parties": [ "WAYNE SHEPARD and ROSEMARY SANDERS SHEPARD, Plaintiffs v. OCWEN FEDERAL BANK, FSB and WELLS FARGO BANK MINNESOTA, and DONALD T. RITTER, in his capacity as Trustee, Defendants" ], "opinions": [ { "text": "TYSON, Judge.\nWayne Shepard and wife, Rosemary Sanders Shepard (\u201cplaintiffs\u201d) appeal from the trial court\u2019s grant of Rule 12(b)(6) motions to dismiss filed by Wells Fargo Bank Minnesota, N.A. (\u201cWells Fargo\u201d) and Ocwen Federal Bank, FSB (\u201cOcwen\u201d) (collectively, \u201cdefendants\u201d). We affirm.\nI. Background\nPlaintiffs obtained a second mortgage loan secured by their residential real property from Chase Mortgage Brokers, Inc. (\u201cChase\u201d). The closing date for the loan was 25 July 1997. Plaintiffs were charged a loan origination fee by Chase. This fee was deducted from the loan proceeds and \u201cwrapped\u201d into the loan to be repaid over the course of several months. The loan was first assigned to Ocwen and later to Wells Fargo.\nPlaintiffs filed this action against defendants on 3 May 2002 alleging the loan origination fee was usurious and illegal. The complaint asserted violations of N.C. Gen. Stat. \u00a7 24-1 et seq., N.C. Gen. Stat. \u00a7 75-1.1, sought reformation of the loan itself, treble damages, and attorneys\u2019 fees. Defendant Donald T. Ritter was the trustee of the original deed of trust and was joined as a party in the action for the reformation claim.\nOn 9 January 2004, Wells Fargo moved to dismiss plaintiffs\u2019 complaint under Rule 12(b)(6) of the North Carolina Rules of Civil Procedure. Wells Fargo affirmatively asserted and argued plaintiffs\u2019 claims were precluded by expiration of the applicable statute of limitations. The trial court heard Wells Fargo\u2019s motion and a similar motion to dismiss filed by Ocwen during its 3 May 2004 civil session. The trial court granted defendants\u2019 motions to dismiss on 8 July 2004 based on plaintiffs\u2019 failure to file within the expiration of the applicable statute of limitations. Plaintiffs appeal.\nII. Issue\nThe sole issue before this Court is whether the trial court properly determined the statute of limitations for plaintiffs\u2019 claims had expired and dismissed plaintiffs\u2019 complaint.\nIII. Usury Law\nPlaintiffs argue the trial court erred by dismissing their claims under N.C. Gen. Stat. \u00a7 24-1 et seq. for expiration of the applicable statute of limitations. We disagree.\nA. Standard of Review\nIn reviewing the trial court\u2019s grant of a Rule 12(b)(6) motion to dismiss, we must determine whether \u201cas a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief can be granted under some legal theory.\u201d Considine v. Compass Grp. USA, Inc., 145 N.C. App. 314, 316-17, 551 S.E.2d 179, 181 (citing Lynn v. Overlook Development, 328 N.C. 689, 692, 403 S.E.2d 469, 471 (1991)), aff'd, 354 N.C. 568, 557 S.E.2d 528 (2001); see also N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (2003). The trial court\u2019s dismissal is affirmed only if \u201c \u2018it appears beyond doubt that the plaintiff could prove no set of facts in support of his claim which would entitle him to relief.\u2019 \u201d Meyer v. Walls, 347 N.C. 97, 111-12, 489 S.E.2d 880, 888 (1997) (quoting Dixon v. Stuart, 85 N.C. App. 338, 340, 354 S.E.2d 757, 758 (1987)).\nDismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff\u2019s claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff\u2019s claim.\nJackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (citing Oates v. JAG, Inc., 314 N.C. 276, 278, 333 S.E.2d 222, 224 (1985)).\nB. Statute of Limitations\nThe trial court dismissed plaintiffs\u2019 complaint under Rule 12(b)(6) on the ground it disclosed a defect to defeat plaintiffs\u2019 claims. \u201cA statute of limitations defense may properly be asserted in a Rule 12(b)(6) motion to dismiss if it appears on the face of the complaint that such a statute bars the claim.\u201d Horton v. Carolina Medicorp, Inc., 344 N.C. 133, 136, 472 S.E.2d 778, 780 (1996). \u201cOnce a defendant raises a statute of limitations defense, the burden of showing that the action was instituted within the prescribed period is on the plaintiff. A plaintiff sustains this burden by showing that the relevant statute of limitations has not expired.\u201d Id. (citations omitted).\nHere, defendants asserted the affirmative defense of expiration of the applicable statute of limitations to plaintiffs\u2019 claims. The statute of limitations for a claim under the usury statutes of N.C. Gen. Stat. \u00a7 24-1 et seq. is two years. N.C. Gen. Stat. \u00a7 1-53(2)-(3) (2003). The issue before us is the date the two year period accrues. \u201cOrdinarily, the period of the statute of limitations begins to run when the plaintiffs right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed.\u201d Davis v. Wrenn, 121 N.C. App. 156, 158-59, 464 S.E.2d 708, 710 (1995) (quotation omitted), cert. denied, 343 N.C. 305, 471 S.E.2d 69 (1996).\nGenerally, the question of when a cause of action accrues is a factual determination. Spears v. Moore, 145 N.C. App. 706, 708, 551 S.E.2d 483, 485 (2001). However, \u201cwhere the evidence is clear and shows without conflict that the claimant had both the capacity and opportunity to discover\u201d the underlying issue but failed to do so, \u201cthe absence of reasonable diligence is established as a matter of law.\u201d Grubb Properties, Inc. v. Simms Investment Co., 101 N.C. App. 498, 501, 400 S.E.2d 85, 88 (citing Moore v. Casualty Co., 207 N.C. 433, 177 S.E. 406 (1934)), aff'd, 328 N.C. 267, 400 S.E.2d 36 (1991). We review de novo questions of law. In re Appeal of the Greens of Pine Glen Ltd. Part., 356 N.C. 642, 647, 576 S.E.2d 316, 319 (2003). \u201cUnder a de novo review, the court considers the matter anew and freely substitutes its own judgment for that of the [trial court].\u201d Id. (citing Mann Media, Inc. v. Randolph Cty. Planning Bd., 356 N.C. 1, 13, 565 S.E.2d 9, 17 (2002)).\nThe United States District Court for the Middle District of North Carolina addressed this issue in Faircloth v. Nat\u2019l Home Loan Corp., 313 F. Supp. 2d 544 (M.D.N.C. 2003), aff'd, 87 Fed. Appx. 314 (4th Cir. 2004) (unpublished). There, the class action plaintiffs asserted the identical causes of action for violations of North Carolina\u2019s Usury Statutes and Unfair and Deceptive Trade Practices Act as plaintiffs do ' here. Id. at 548. The defendants in Faircloth asserted the plaintiffs\u2019 causes of action accrued on the closing date and the plaintiffs\u2019 complaint was filed after expiration of the applicable statutes of limitation. Id. at 552. The court agreed. \u201c[T]he wrong that continues over time, however, is different from a wrong which comes into existence or becomes known only after a passage of time .... [T]he alleged statutory violation, though continuing, is solitary and that a solitary action is distinguishable from wrongs that are perpetrated seriatim.\u201d Id. at 552-53 (citing and quoting Miller v. Pac. Shore Funding, 224 F. Supp. 2d 977 (M.D.Md. 2002), aff\u2019d, 92 Fed. Appx. 93 (2004)). The Miller court concluded:\nMore than three years before filing his suit, at the closing of the loan, [the plaintiff] had sufficient knowledge of circumstances indicating he might have been harmed. The allegedly illegal fees were itemized on the face of the loan documents he signed on that date. The continued charging, collecting, and receiving of those fees by the lender or its assignees do not continuously renew the accrual of his cause of action.\n224 F. Supp. 2d at 990, n. 6.\nCiting Miller, the Faircloth court determined, \u201cthe running of the statute of limitations for the plaintiffs cause of action began at the loan closing because the alleged wrong was not of a type that could become known only after a passage of time and because the alleged wrong, though continuing, arose from one unitary action.\u201d 313 F. Supp. 2d at 553. The court held the statutes of limitation for both causes of action accrued on the closing date and expired prior to the plaintiffs filing their complaint. Id. at 554.\nAlthough we are not bound by federal case law, we may find their analysis and holdings persuasive. Soderlund v. Kuch, 143 N.C. App. 361, 370, 546 S.E.2d 632, 638 (\u201cWith the exception of the United States Supreme Court, federal appellate decisions are not binding upon either the appellate or trial courts of this State.\u201d), disc. rev. denied, 353 N.C. 729, 551 S.E.2d 438 (2001); Huggard v. Wake County Hospital System, 102 N.C. App. 772, 775, 403 S.E.2d 568, 570 (1991) (\u201cAs an interpretation of state law by a federal court, this holding is not binding on us; however, we find its analysis persuasive.\u201d), aff\u2019d, 330 N.C. 610, 411 S.E.2d 610 (1992); House v. Hillhaven, Inc., 105 N.C. App. 191, 195, 412 S.E.2d 893, 896 (Federal cases, although not binding on this Court, are instructive and persuasive authority.), disc. rev. denied, 331 N.C. 284, 417 S.E.2d 251 (1992). We hold the Middle District\u2019s analysis and resolution of the issue at bar is correct.\nPlaintiffs\u2019 claim against defendants arises out of alleged misrepresentations of terms and conditions of the loans, excessive loan origination fees and costs, and inflated expenses. However, all details of the loan, including interest rate, fees, and expenses, were fully disclosed in the loan documents to plaintiffs prior to closing. This shows plaintiffs had \u201cboth the capacity and opportunity to discover\u201d their claim, but failed to do so. Grubb Properties, Inc., 101 N.C. App. at 501, 400 S.E.2d at 88. Plaintiffs were on notice of the pertinent terms and conditions of the loan. We further note that N.C. Gen. Stat. \u00a7 24-10(g) (2003) states in part, \u201cThe fees . . . are fully earned when the loan is made ....\u201d The alleged wrongdoing by defendants accrued and was complete upon the closing of the loan. Plaintiffs\u2019 right to initiate an action accrued. See Davis, 121 N.C. App. at 158-59, 464 S.E.2d at 710 (\u201cOrdinarily, the period of the statute of limitations begins to run when the plaintiff\u2019s right to maintain an action for the wrong alleged accrues. The cause of action accrues when the wrong is complete, even though the injured party did not then know the wrong had been committed.\u201d).\nPlaintiffs assert the interest and expenses associated with the loan origination fee should be treated the same as interest based on the underlying loan. Thus, the statute of limitations would accrue on the date of payment, not the date of closing. As authority, they cite our Supreme Court\u2019s decisions in Hollowell v. B. & L. Association, 120 N.C. 286, 26 S.E. 781 (1897) and Swindell v. Federal National Mortgage Assn., 330 N.C. 153, 409 S.E.2d 892 (1991). In Hollowell, the plaintiff borrowed $1,000.00 from the defendant. 120 N.C. at 287, 26 S.E. at 781. The defendant charged plaintiff both interest and \u201cdues\u201d to be paid each month, as required by the loan contract. Id. The plaintiff argued that the combination of the required interest and \u201cdues\u201d were usurious. Id. The defendant asserted the monthly \u201cdues\u201d did not count towards the usury limit. Id. at 288, 26 S.E. at 781-82. The Court held, \u201cwhatever is collected over and above 6 per cent, whether called interest or \u201cdues\u201d is, in fact, interest and usurious.\u201d Id. at 287, 26 S.E. at 781. Our review of Hollowell indicates an important distinction from plaintiffs\u2019 complaint. There, the defendant required the plaintiff to pay the \u201cdues\u201d every month during the term of the loan. Id. Here, plaintiffs were free to pay the loan origination fee up front and not to finance it with proceeds from the loan.\nIn Swindell, the plaintiff \u201cexecuted an adjustable rate note secured by a deed of trust on a home for $112,500.00\u201d from a mortgage lender. 330 N.C. at 155, 409 S.E.2d at 893. The defendant purchased the note from the mortgage lender. Id. The loan contract included a provision for late payment penalties for untimely payments toward the note. Id. The late payment interest rate exceeded the State\u2019s usury limits and the plaintiffs filed a complaint seeking declaratory relief. Id. at 155-56, 409 S.E.2d at 893-94. The defendant argued the late charge was not usurious under the statutes. Id. at 156, 26 S.E. at 894. The Court held differently, interpreting late fees governed by N.C. Gen. Stat. \u00a7 24-10.1 to be interest and subject to the usury laws. Id. at 157-58, 409 S.E.2d at 895. Like Hollowell, we hold a distinction exists between a required late payment fee that may or may not be charged and a loan origination fee that plaintiffs have the option and right to pay up front to avoid accrued interest.\nPlaintiffs also argue the two year statute of limitations accrues individually for each date of payment of interest and runs forward. Plaintiffs cite this Court\u2019s decisions in Haanebrink v. Meyer, 47 N.C. App. 646, 267 S.E.2d 598 (1980) and Merrill v. Knox,, 94 N.C. App. 340, 380 S.E.2d 160 (1989). However, our review of Haanebrink and Merritt shows the usurious interest rates at issue were related to the actual promissory notes, not an origination fee. 47 N.C. App. at 650, 267 S.E.2d at 600; 94 N.C. App. at 342, 380 S.E.2d at 162. Here, the purported illegal loan and interest at issue derives from a loan origination fee. Although plaintiffs make periodic payments toward the loan, the fee was paid on the date of closing out of the loan proceeds.\nWe hold the closing date, 25 July 1997, is the date of accrual of plaintiffs\u2019 claim as a matter of law. Grubb Properties, Inc., 101 N.C. App. at 501, 400 S.E.2d at 88. Plaintiffs were on notice of the origination fees and had all the necessary information prior to and on the date of closing. Chase did not require plaintiffs to finance the loan origination fee. Plaintiffs legally had the option of paying the loan origination fee up front with cash, check, or credit card, rather than financing it with their loan proceeds. Chase \u201cfully earned\u201d the loan origination fee on the closing date, when it was paid in full.\nPlaintiffs did not file their complaint until 3 May 2002, more than two years after the closing date and accrual of the cause of action. The statute of limitations elapsed on 25 July 1999. The trial court properly dismissed plaintiffs\u2019 claim under N.C. Gen. Stat. \u00a7 24-1 et seq. See Jackson v. Bumgardner, 318 N.C. at 175, 347 S.E.2d at 745 (Atrial court\u2019s grant of a 12(h)(6) motion to dismiss is proper when some fact disclosed in the complaint necessarily defeats plaintiff\u2019s claim.). This assignment of error is overruled.\nIV. Unfair and Deceptive Trade Practices\nPlaintiffs concede their unfair and deceptive trade practices claim derives from their usury claim. Thus, they stipulated should this Court hold the trial court erred in determining the usury claim was time-barred the same would apply to their unfair and deceptive trade practices claim. In light of our holding that plaintiffs\u2019 usury claim was barred by the applicable statute of limitations, plaintiffs\u2019 argument is moot. Plaintiffs stipulate in their brief that their claim under N.C. Gen. Stat. \u00a7 75-1.1 is otherwise time-barred under the applicable statute of limitations. In light of our holding on plaintiffs\u2019 usury claim and plaintiffs\u2019 stipulation, we do not reach the issue of whether the trial court properly dismissed plaintiffs\u2019 claim under N.C. Gen. Stat. \u00a7 75-1.1. This assignment of error is dismissed.\nV. Conclusion\nDefendants properly asserted the affirmative defense of expiration of the applicable statute of limitations to plaintiffs\u2019 cause of action for usury under N.C. Gen. Stat. \u00a7 24-1 et seq. The accrual date for claims based on loan origination fees fully earned and paid on the closing date is the closing date. Plaintiffs\u2019 stipulation to the correctness of the trial court\u2019s dismissal of their unfair and deceptive trade practices claim renders this argument moot and precludes our review of that issue. The trial court\u2019s order granting defendants\u2019 motions to dismiss is affirmed.\nAffirmed.\nJudge McCULLOUGH concurs.\nJudge BRYANT dissents.", "type": "majority", "author": "TYSON, Judge." }, { "text": "BRYANT, Judge\ndissenting.\nThe majority holds the statute of limitations for plaintiffs\u2019 claims under Chapter 24 (N.C. Gen. Stat. \u00a7 24-1 et seq.) had expired and therefore plaintiffs\u2019 complaint was properly dismissed. For the reasons which follow, I respectfully dissent from the majority opinion.\nPlaintiffs brought their action alleging the loan origination fee, charged by defendant and rolled back into plaintiff\u2019s high-end second mortgage loan was usurious and illegal under Chapter 24. There are two statutory penalties for usury in N.C.G.S. \u00a7 24-2 and each penalty has a two-year statute of limitations. See N.C. Gen. Stat. \u00a7 1-53(2) (2003). However, the point at which the statute of limitations begins to run is different depending on whether the plaintiff seeks forfeiture or double recovery. \u201cThe statute runs from the date of payment for the double-recovery remedy, and from the date of the agreement for the forfeiture remedy.\u201d Merritt v. Knox, 94 N.C. App. 340, 342, 380 S.E.2d 160, 162 (1989) (citing Haanebrink v. Meyer, 47 N.C. App. 646, 267 S.E.2d 598 (1980)). Here, plaintiffs seek only the double-recovery remedy, yet the majority holds the statute of limitations runs from the date of the loan closing. That holding is contrary to our statutory and common law. As our court has stated:\nIt is well settled that the statute of limitations on the recovery of twice the amount of interest paid begins to run upon payment of the usurious interest. The right of action to recover the penalty for usury paid accrues upon each payment of usurious interest giving rise to a separate cause of action to recover the penalty therefor, which action is barred by the statute of limitations at the expiration of two years from such payment.\nHaanebrink v. Meyer, 47 N.C. App. 646, 648, 267 S.E.2d 598, 599 (1980) (citations omitted) (emphasis added).\nThe dispositive issue concerns when the two-year statute of limitations period begins to accrue. The majority cites a North Carolina federal district court case, which was upheld by the Fourth Circuit in support of its conclusion that the statute of limitations accrues on the loan closing date. Faircloth v. Nat\u2019l Home Loan Corp., 313 F. Supp. 2d 544 (M.D.N.C. 2003), aff\u2019d, 87 Fed. Appx. 314 (4th Cir. 2004) (unpublished) (holding the plaintiffs cause of action began at loan closing because no time had to pass before the plaintiff could discover a wrong had been committed against him, because the illegal fees were itemized on the face of the loan documents the day he signed them). It is well established in our jurisprudence that decisions from the Fourth Circuit and other federal appeals courts are not binding on North Carolina state courts as to issues involving North Carolina law. See, e.g. Harter v. Vernon, 101 F.3d 334, 342 (4th Cir. 1996); and State v. Guice, 141 N.C. App. 177, 187, 541 S.E.2d 474, 481 (2000). In fact, the Faircloth court ignored well-settled North Carolina law and used a peculiar analysis in attempting to distinguish \u201cinterest\u201d and \u201cfees\u201d. Nevertheless, the majority, relying on Faircloth, states the limitations period in the instant case began to accrue on the loan closing date because the usurious origination fee was disclosed on the face of the loan, giving plaintiffs the opportunity to discover that a wrong had been committed against them.\nThe majority, incorrectly applies a \u201creasonable diligence\u201d standard when stating plaintiffs\u2019 lack of reasonable diligence can be established as a matter of law because plaintiffs had the opportunity on the loan closing date to discover a wrong had been committed against them. Our Supreme Court has made it clear that the purpose of the Interest Statutes in Chapter 24 is to protect North Carolina borrowers, and the burden of expertise to know the legality of rates is placed on the lender.\nThe purpose of chapter 24 is to further \u201cthe \u201cparamount policy of North Carolina to protect North Carolina resident borrowers through the application of North Carolina interest laws\u201d. N.C.G.S. \u00a7 24-2.1 (1986).... The statute relieves the borrower of the necessity for expertise and vigilance regarding the legality of rates he must pay. That onus is placed instead on the lender, whose business it is to lend money for profit and who is thus in a better position than the borrower to know the law.\nSwindell v. Federal Nat\u2019l Mortg. Ass\u2019n, 330 N.C. 153, 160, 409 S.E.2d 892, 896 (1991). Because the Interest Statutes as interpreted by our Supreme Court clearly avoid placing the burden on borrowers to know a wrong has been committed against them when it relates to usurious interest rates, the absence of reasonable diligence cannot be established as a matter of law. In addition, any attempt to impose such an onus on the borrower to discover illegal fees is not only against the plain reading of the statute, but would set a dangerous precedent. The General Assembly could not have intended to leave borrowers unprotected from lenders who circumvent usury penalties by charging illegal fees, then claim the borrower had the opportunity to discover the wrong on the closing date, and therefore the borrower\u2019s failure to discover precludes any action brought more than two years after the closing date. Such a result is exactly what the statutes were designed to prevent.\nThe majority seems to conclude the wrong is complete because the fees are \u201cfully earned\u201d, referring to a portion of the statute which sentence reads, \u201cThe fees . . . are fully earned when the loan is made and are not a prepayment penalty under this Chapter or any other law of this State.\u201d N.C. Gen. Stat. \u00a7 24-10(g) (2003). Here, however, the usurious loan origination fee is in the nature of a prepayment penalty because the borrower has to pay a loan origination fee based on a usurious interest rate, which fee is then wrapped back into the mortgage loan, all of which has an interest component required to be paid each month. Therefore, I would hold the \u201cfully earned\u201d language in N.C.G.S. \u00a7 2440(g) does not apply to the consideration of whether an alleged wrong is complete when the fees are fully earned.\nThe majority also attempts to distinguish Hollowell and Swindell in determining why the loan origination fee in the instant case should not be considered interest, stating a borrower has an option to pay a loan origination fee whereas a late fee payment is required. Neither Hollowell nor Swindell was based on such a distinction. In fact, both cases clearly stated \u201c[a]ny charges made against a borrower in excess of the lawful rate of interest, whether called fines, charges, dues or interest, are, in fact, interest and usurious.\u201d Swindell at 158, 409 S.E.2d at 895 (quoting Hollowell v. Southern Bldg. & Loan Ass\u2019n, 120 N.C. 286, 287, 26 S.E. 781, 781 (1897)).\nFinally, the majority attempts to distinguish Haanebrink and Merritt to establish that the two-year statute of limitations does not accrue on the date of each payment. However, as earlier stated, \u201cthe statute of limitations on the [double recovery penalty] begins to run upon payment of the usurious interest. The right of action ... accrues upon each payment of usurious interest giving rise to a separate cause of action to recover the penalty[.]\u201d Haanebrink, 47 N.C. App. at 648, 267 S.E.2d at 599 (emphasis added). The majority\u2019s claim that those two cases are distinguishable because they related to actual promissory notes, as opposed to an origination fee, relies on the premise that the fee was paid on the loan closing date. To adopt the majority\u2019s line of reasoning is to ignore several decades of legal precedent which establishes the statute of limitations for the double recovery remedy begins to run on the date of payment. See, e.g. Id. Such a perspective as put forth by the majority does not apply the Interest Statutes in the manner intended by the General Assembly so as to protect borrowers. As mandated by the legislature, \u201cIt is the paramount public policy of North Carolina to protect North Carolina resident borrowers through the application of North Carolina interest laws.\u201d N.C. Gen. Stat. \u00a7 24-2.1 (2003). \u201c \u2018The entire subject of the rate of interest and penalties for usury rests in legislative discretion, and the courts have no power other than to interpret and execute the legislative will.\u2019 \u201d Swindell at 156, 409 S.E.2d 892, 894 (quotation omitted).\nFor all the reasons stated herein, I believe the trial court erred in dismissing claims under N.C.G.S. \u00a7 24-1 et seq. based on the statute of limitations as plaintiffs\u2019 right to recover accrued upon each payment. Therefore, the trial court\u2019s order granting defendants\u2019 motion to dismiss should be reversed. Because plaintiffs\u2019 unfair and deceptive trade practices (UDTP) claim under N.C. Gen. Stat. \u00a7 75-1.1 derives from the usury claim the UDTP claim should remain viable.", "type": "dissent", "author": "BRYANT, Judge" } ], "attorneys": [ "Financial Protection Law Center, by Mallam J. Maynard, Maria D. McIntyre, and Chandra T. Taylor, for plaintiffs-appellants.", "Kellam & Pettit, P.A., by William Walt Pettit, for defendants-appellees.", "Hartzell & Whiteman, LLP, by J. Jerome Hartzell, for Amicus Curiae The North Carolina Academy of Trial Lawyers.", "Seth P. Rosebrock, for Amicus Curiae Center for Responsible Lending.", "Carlene McNulty, for Amicus Curiae North Carolina Justice Center.", "Hazel Mack-Hilliard, for Amicus Curiae Legal Aid of North Carolina, Inc.", "Andrea Young Bebber, for Amicus Curiae Legal Services of Southern Piedmont, Inc.", "William J. Whallen, for Amicus Curiae Pisgah Legal Services." ], "corrections": "", "head_matter": "WAYNE SHEPARD and ROSEMARY SANDERS SHEPARD, Plaintiffs v. OCWEN FEDERAL BANK, FSB and WELLS FARGO BANK MINNESOTA, and DONALD T. RITTER, in his capacity as Trustee, Defendants\nNo. COA04-1634\n(Filed 16 August 2005)\nStatutes of Limitation and Repose\u2014 usury \u2014 loan origination fee \u2014 accrual at closing\nPlaintiffs\u2019 claim for usury arising from a loan origination fee was properly dismissed for violation of the statute of limitations where plaintiffs filed their complaint more than two years after the closing date and accrual of the cause of action. Plaintiffs were on notice of the origination fees, had all the necessary information before and on the closing date, and could have paid the loan origination fee up front with cash, check, or credit card rather than financing it with their loan proceeds. The loan origination fee was \u201cfully earned\u201d by the mortgage broker on the closing date, when it was paid in full. N.C.G.S. \u00a7 24-10(g).\nJudge Bryant dissenting.\nAppeal by plaintiffs from order entered 8 July 2004 by Judge Charles H. Henry in New Hanover County Superior Court. Heard in the Court of Appeals 15 June 2005.\nFinancial Protection Law Center, by Mallam J. Maynard, Maria D. McIntyre, and Chandra T. Taylor, for plaintiffs-appellants.\nKellam & Pettit, P.A., by William Walt Pettit, for defendants-appellees.\nHartzell & Whiteman, LLP, by J. Jerome Hartzell, for Amicus Curiae The North Carolina Academy of Trial Lawyers.\nSeth P. Rosebrock, for Amicus Curiae Center for Responsible Lending.\nCarlene McNulty, for Amicus Curiae North Carolina Justice Center.\nHazel Mack-Hilliard, for Amicus Curiae Legal Aid of North Carolina, Inc.\nAndrea Young Bebber, for Amicus Curiae Legal Services of Southern Piedmont, Inc.\nWilliam J. Whallen, for Amicus Curiae Pisgah Legal Services." }, "file_name": "0475-01", "first_page_order": 505, "last_page_order": 516 }