{ "id": 8352915, "name": "STATE OF NORTH CAROLINA ex rel. ROY COOPER, Attorney General, and JOSEPH A. SMITH, JR., Commissioner of Banks, Plaintiff v. NCCS LOANS, INC.; JAGJRTX, LLC; JAG NC, LLC d/b/a \"Advance Internet\" and \"Advance Til Payday;\" and JOHN A. GILL, Defendants", "name_abbreviation": "State ex rel. Cooper v. NCCS Loans, Inc.", "decision_date": "2005-12-06", "docket_number": "No. COA04-1660", "first_page": "630", "last_page": "644", "citations": [ { "type": "official", "cite": "174 N.C. App. 630" } ], "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": "264 S.E.2d 101", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0 }, { "cite": "299 N.C. 715", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575818 ], "year": 1980, "pin_cites": [ { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0715-01" ] }, { "cite": "331 S.E.2d 759", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "761" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 77", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526613 ], "year": 1985, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0077-01" ] }, { "cite": "542 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "319", "parenthetical": "citing Naas v. Kelso, 76 N.C. App. 77, 80, 331 S.E.2d 759, 761 (1985)" } ], "opinion_index": 0 }, { "cite": "142 N.C. App. 316", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9440858 ], "year": 2001, "pin_cites": [ { "page": "319", "parenthetical": "citing Naas v. Kelso, 76 N.C. App. 77, 80, 331 S.E.2d 759, 761 (1985)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/142/0316-01" ] }, { "cite": "364 S.E.2d 723", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "725", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "88 N.C. App. 693", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8358971 ], "year": 1988, "pin_cites": [ { "page": "696", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc-app/88/0693-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 1-278", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "447 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "pin_cites": [ { "page": "483" } ], "opinion_index": 0 }, { "cite": "116 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523314 ], "year": 1994, "pin_cites": [ { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/nc-app/116/0250-01" ] }, { "cite": "606 S.E.2d 749", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "751", "parenthetical": "quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994)" } ], "opinion_index": 0 }, { "cite": "168 N.C. App. 231", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8468971 ], "year": 2005, "pin_cites": [ { "page": "234", "parenthetical": "quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/168/0231-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 24-2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2003, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 75-15.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "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": 0 }, { "cite": "454 S.E.2d 225", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "228" } ], "opinion_index": 0 }, { "cite": "339 N.C. 717", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2557296 ], "year": 1995, "pin_cites": [ { "page": "723" } ], "opinion_index": 0, "case_paths": [ "/nc/339/0717-01" ] }, { "cite": "338 S.E.2d 918", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "923", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "79 N.C. App. 51", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8519376 ], "year": 1986, "pin_cites": [ { "page": "59", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/79/0051-01" ] }, { "cite": "400 S.E.2d 38", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "42" } ], "opinion_index": 0 }, { "cite": "328 N.C. 202", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2543010 ], "year": 1991, "pin_cites": [ { "page": "208" } ], "opinion_index": 0, "case_paths": [ "/nc/328/0202-01" ] }, { "cite": "276 S.E.2d 397", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "403" } ], "opinion_index": 0 }, { "cite": "302 N.C. 539", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567785 ], "year": 1981, "pin_cites": [ { "page": "548" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0539-01" ] }, { "cite": "529 S.E.2d 676", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2000, "pin_cites": [ { "page": "681", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "352 N.C. 61", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 685063 ], "year": 2000, "pin_cites": [ { "page": "68", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/352/0061-01" ] }, { "cite": "400 S.E.2d 476", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "482" } ], "opinion_index": 0 }, { "cite": "101 N.C. App. 450", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527876 ], "year": 1991, "pin_cites": [ { "page": "460" } ], "opinion_index": 0, "case_paths": [ "/nc-app/101/0450-01" ] }, { "cite": "548 S.E.2d 704", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2001, "pin_cites": [ { "page": "711", "parenthetical": "citing Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991)" } ], "opinion_index": 0 }, { "cite": "353 N.C. 647", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135724 ], "year": 2001, "pin_cites": [ { "page": "656", "parenthetical": "citing Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991)" } ], "opinion_index": 0, "case_paths": [ "/nc/353/0647-01" ] }, { "cite": "354 S.E.2d 459", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "467" } ], "opinion_index": 0 }, { "cite": "319 N.C. 274", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4748509 ], "year": 1987, "pin_cites": [ { "page": "286" } ], "opinion_index": 0, "case_paths": [ "/nc/319/0274-01" ] }, { "cite": "28 S.E.2d 201", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1943, "pin_cites": [ { "page": "203" } ], "opinion_index": 0 }, { "cite": "223 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615929 ], "year": 1943, "pin_cites": [ { "page": "690" } ], "opinion_index": 0, "case_paths": [ "/nc/223/0687-01" ] }, { "cite": "233 S.E.2d 538", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "544" } ], "opinion_index": 0 }, { "cite": "292 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569880 ], "year": 1977, "pin_cites": [ { "page": "414" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0406-01" ] }, { "cite": "565 S.E.2d 140", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2002, "pin_cites": [ { "page": "146" }, { "page": "146" } ], "opinion_index": 0 }, { "cite": "355 N.C. 672", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220147 ], "weight": 2, "year": 2002, "pin_cites": [ { "page": "681" }, { "page": "681" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0672-01" ] }, { "cite": "585 S.E.2d 452", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "pin_cites": [ { "page": "455", "parenthetical": "citing Dewitt v. Eveready Battery Co., Inc., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)" } ], "opinion_index": 0 }, { "cite": "160 N.C. App. 388", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8956285 ], "year": 2003, "pin_cites": [ { "page": "391", "parenthetical": "citing Dewitt v. Eveready Battery Co., Inc., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/160/0388-01" ] }, { "cite": "597 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2004, "pin_cites": [ { "page": "694", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "358 N.C. 440", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2986682 ], "year": 2004, "pin_cites": [ { "page": "468", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0440-01" ] }, { "cite": "132 S.E.2d 692", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "694", "parenthetical": "citing Ripple, 193 N.C. 422, 137 S.E. 156" } ], "opinion_index": 0 }, { "cite": "260 N.C. 335", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574595 ], "year": 1963, "pin_cites": [ { "page": "338", "parenthetical": "citing Ripple, 193 N.C. 422, 137 S.E. 156" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0335-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 53-281", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "137 S.E. 156", "category": "reporters:state_regional", "reporter": "S.E.", "weight": 2, "year": 1927, "opinion_index": 0 }, { "cite": "193 N.C. 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2217885 ], "weight": 2, "year": 1927, "opinion_index": 0, "case_paths": [ "/nc/193/0422-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "pin_cites": [ { "page": "827", "parenthetical": "quoting 54 C.J.S. Loans, p. 654" }, { "page": "827" } ], "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "529", "parenthetical": "quoting 54 C.J.S. Loans, p. 654" }, { "page": "530" } ], "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "277 S.E.2d 360", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "372", "parenthetical": "\"If there is a bona fide purchase of property as opposed to a subterfuge to conceal a loan at a usurious rate, then the usury laws have no application whatsoever, even though the sale is made at an exorbitant price.\"" } ], "opinion_index": 0 }, { "cite": "303 N.C. 30", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8571351 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "47-48", "parenthetical": "\"If there is a bona fide purchase of property as opposed to a subterfuge to conceal a loan at a usurious rate, then the usury laws have no application whatsoever, even though the sale is made at an exorbitant price.\"" }, { "page": "37" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0030-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 53-164", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 24-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(c)" } ], "opinion_index": 0 }, { "cite": "188 S.E. 406", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1936, "pin_cites": [ { "page": "409" } ], "opinion_index": 0 }, { "cite": "210 N.C. 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628591 ], "year": 1936, "pin_cites": [ { "page": "699" } ], "opinion_index": 0, "case_paths": [ "/nc/210/0694-01" ] }, { "cite": "14 S.E.2d 37", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1941, "pin_cites": [ { "page": "38", "parenthetical": "quoting Hill v. Lindsay, 210 N.C. 694, 699, 188 S.E. 406, 409 (1936)" } ], "opinion_index": 0 }, { "cite": "219 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8624191 ], "year": 1941, "pin_cites": [ { "page": "397", "parenthetical": "quoting Hill v. Lindsay, 210 N.C. 694, 699, 188 S.E. 406, 409 (1936)" } ], "opinion_index": 0, "case_paths": [ "/nc/219/0395-01" ] }, { "cite": "409 S.E.2d 892", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "pin_cites": [ { "page": "895-96", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "330 N.C. 153", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2512142 ], "year": 1991, "pin_cites": [ { "page": "159", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/330/0153-01" ] }, { "cite": "51 S.E. 904", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "pin_cites": [ { "page": "907" } ], "opinion_index": 0 }, { "cite": "139 N.C. 199", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652379 ], "year": 1905, "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/nc/139/0199-01" ] }, { "cite": "573 S.E.2d 118", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "123", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001)" } ], "opinion_index": 0 }, { "cite": "356 N.C. 571", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511376 ], "year": 2002, "pin_cites": [ { "page": "578-79", "parenthetical": "quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001)" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0571-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 75-1.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 53-166", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(b)" }, { "page": "(d)" } ], "opinion_index": 0 }, { "cite": "811 N.E.2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "case_ids": [ 9198256 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "824" }, { "page": "826" }, { "page": "825", "parenthetical": "applying similar reasoning" } ], "opinion_index": 0, "case_paths": [ "/ne2d/811/0819-01" ] } ], "analysis": { "cardinality": 1318, "char_count": 36211, "ocr_confidence": 0.763, "pagerank": { "raw": 1.1821750716421164e-07, "percentile": 0.5888806644711718 }, "sha256": "44e59bad334ec72ddc8116481fc064bb867867c14f42b4c750dffabe206102bb", "simhash": "1:8feaf02cd77f7c58", "word_count": 5865 }, "last_updated": "2023-07-14T21:19:44.302822+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WYNN and CALABRIA concur." ], "parties": [ "STATE OF NORTH CAROLINA ex rel. ROY COOPER, Attorney General, and JOSEPH A. SMITH, JR., Commissioner of Banks, Plaintiff v. NCCS LOANS, INC.; JAGJRTX, LLC; JAG NC, LLC d/b/a \u201cAdvance Internet\u201d and \u201cAdvance Til Payday;\u201d and JOHN A. GILL, Defendants" ], "opinions": [ { "text": "LEVINSON, Judge.\nDefendants (NCCS Loans, Inc.; JAGJRTX, LLC; JAG N.C., LLC, d/b/a \u201cAdvance Internet\u201d and \u201cAdvance Til Payday\u201d; and John Gill), appeal from summary judgment entered in favor of plaintiff (State of North Carolina). We affirm.\n\u201cThe question before us, which appears to be one of first impression, requires us to determine whether a company\u2019s policy of extending to its customers an immediate cash \u2018rebate,\u2019 as well as [use of its office computers for a few hours a week, by appointment, to access the internet], in exchange for a one-year commitment to make bi-weekly payments in an amount equal to five times the amount of the rebate, is tantamount to the operation of a small loan business in violation of [North Carolina\u2019s] usury laws.\u201d Short on Cash.net v. Dep\u2019t of Finan., 811 N.E.2d 819, 824 (Ind. Ct. App. 2004). The Defendant NCCS Loans is a corporation which until 31 August 2001 did business in North Carolina through its \u201cAdvance Til Payday\u201d check-cashing stores, where it offered deferred deposit loans. On 1 September 2001 defendant closed Advance Til Payday, and reopened its stores under the name \u201cAdvance Internet.\u201d Corporate defendant JAGJRTX, LLC succeeded NCCS as owner of Advance Internet. On 12 February 2002 plaintiff filed suit against defendants NCCS Loans, Inc., and JAGJRTX, LLC, d/b/a \u201cAdvance Internet\u201d and \u201cAdvance Til Payday.\u201d Plaintiff sought injunctive and other relief for (1) usury, in violation of N.C. Gen. Stat. \u00a7 Chapter 24; (2) violation of the North Carolina Consumer Finance Act, N.C. Gen. Stat. \u00a7 53-166; and (3) unfair and deceptive trade practices, in violation of N.C. Gen. Stat. \u00a7 75-1.1. In March 2003 plaintiff moved to amend its complaint to add two additional defendants, JAG N.C., LLC d/b/a \u201cAdvance Internet\u201d and \u201cAdvance Til Payday\u201d; and John Gill. Defendants consented to the addition of JAG N.C., LLC. Gill was added by court order entered in June 2003. Plaintiff also filed a motion for summary judgment, which was heard by the trial court in June 2004. On 9 September 2004 the court entered an order granting summary judgment in favor of plaintiff on all claims. Defendants have appealed the summary judgment order. \u201cSummary judgment is an appropriate disposition only \u2018if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u2019 \u201d Liberty Mut. Ins. Co. v. Pennington, 356 N.C. 571, 578-79, 573 S.E.2d 118, 123 (2002) (quoting N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2001)). Defendants herein argue that the trial court erred by granting summary judgment for plaintiff, on the grounds that the evidence raised genuine issues of material fact as to whether they violated the Consumer Finance Act, made usurious loans, or engaged in unfair or deceptive trade practices. We disagree.\n\u201cInterest is the premium allowed by law for the use of money, while usury is the taking of more for its use than the law allows. It is an illegal profit.\u201d Yarborough v. Hughes, 139 N.C. 199, 207, 51 S.E. 904, 907 (1905). \u201cThe elements of usury are [1] a loan or forbearance of the collection of money, [2] an understanding that the money owed will be paid, [3] payment or an agreement to pay interest at a rate greater than allowed by law, and [4] the lender\u2019s corrupt intent to receive more in interest than the legal rate permits for use of the money loaned.\u201d Swindell v. National Mortgage Ass\u2019n, 330 N.C. 153, 159, 409 S.E.2d 892, 895-96 (1991) (citations omitted). \u201cUsury statutes are designed to protect the borrower whose necessity and importunity may place him at a disadvantage with respect to the exactions of the lender[.]\u201d Mortgage Co. v. Zion Church, 219 N.C. 395, 397, 14 S.E.2d 37, 38 (1941) (quoting Hill v. Lindsay, 210 N.C. 694, 699, 188 S.E. 406, 409 (1936)).\nRegulation of consumer loans is addressed in Chapter 24 of the General Statutes, N.C. Gen. Stat. \u00a7 24-1.1, and the North Carolina Consumer Finance Act, N.C. Gen. Stat. \u00a7 53-164, et seq. (2003). The maximum allowable rate of interest on consumer loans of $25,000 or less is set forth in N.C. Gen. Stat. \u00a7 24-1.1(c). Under the Consumer Finance Act, a consumer lender may not charge interest \u201cgreater than permitted by Chapter 24\u201d on loans of $10,000 or less without first obtaining a license from the North Carolina Commissioner of Banks. N.C. Gen. Stat. \u00a7\u00a7 53-166 and 53-168 (2003). In sum, for an unlicensed lender to charge a rate of interest on a small loan greater than the rates permitted is a violation both of the Consumer Finance Act, and of Chapter 24\u2019s prohibitions on usury. In the instant case, it is undisputed that defendants are not licensed by the Commissioner of Banks.\nHowever, usury laws apply only to loans, not to sales. Auto Supply v. Vick, 303 N.C. 30, 47-48, 277 S.E.2d 360, 372 (1981) (\u201cIf there is a bona fide purchase of property as opposed to a subterfuge to conceal a loan at a usurious rate, then the usury laws have no application whatsoever, even though the sale is made at an exorbitant price.\u201d). A loan is \u201cmade upon \u2018the delivery by one party and the receipt by the other party of a given sum of money, an agreement, express or implied, to repay the sum lent, with or without interest.\u2019 \u201d Kessing v. Mortgage Corp., 278 N.C. 523, 529, 180 S.E.2d 823, 827 (1971) (quoting 54 C.J.S. Loans, p. 654) (other citations omitted). Significantly, N.C. Gen. Stat. \u00a7 53-166(b) (2003) expressly states that its provisions \u201capply to any person who seeks to avoid its application by any device, subterfuge or pretense whatsoever.\u201d Thus:\nThe courts of this state regard the substance of a transaction, rather than its outward appearance, as controlling. Specifically, when there is an allegation that the usury laws have been violated by a particular act or course of conduct, the courts of North Carolina will not hesitate to look beneath the formality of the activity to determine whether such an incident is, in fact, usurious.\nAuto Supply, 303 N.C. at 37, 277 S.E.2d at 366 (citing Ripple v. Mortgage Corp., 193 N.C. 422, 137 S.E. 156 (1927)) (other citations omitted).\nDefendants previously offered deferred deposit loans, commonly known as \u201cpayday loans\u201d, through their \u201cAdvance Til Payday\u201d check-cashing stores in North Carolina. To obtain such a loan, the customer would write a check payable to the payday lender after providing proof of employment and a checking account. The lender then gave the customer 85% of the face value of the check in cash, and agreed not to present the check to the bank for two weeks, or until the customer\u2019s next paycheck. In return for the delay in presenting the check, the lender would retain 15% of the check\u2019s face value. If, at the time he received his next paycheck, a customer still did not have enough money to cover the check, he could renew the loan by making another payment of 15% of the amount of the original loan. The customer continued to make these 15% payments until the check was cashed.\nThe annual interest rate on payday loans generally exceeds 400%; therefore, absent statutory authorization, such loans are usurious. Payday loans were authorized by former N.C. Gen. Stat. \u00a7 53-281, which expired on 31 August 2001. The next day, 1 September 2001, defendant \u201cAdvance Til Payday\u201d reopened as defendant \u201cAdvance Internet.\u201d The key issue raised by plaintiff\u2019s summary judgment motion was whether the evidence established, as a matter of law, that defendants offered loans at usurious interest rates after 31 August 2001.\nAdvance Internet transactions share many substantive features of the deferred deposit loans offered by Advance Til Payday. As with payday loans, the Advance Internet customer (1) shows proof of employment and of a checking account; (2) receives an immediate cash payment; and (3) is obligated to repay both the cash advance and periodic accrued payments. The Advance Internet customer is liable for this debt until he either makes payments of 20% of the original cash advance every two weeks for a year; or repays the cash advance and all accrued periodic payments. In these respects, the new contract is essentially the same as a payday loan, except that the fees are 20% rather than 15%.\nThe only difference between check-cashing loans offered by Advance Til Payday and the Advance Internet transactions is that Advance Internet customers now execute documents purporting to be for internet service. To obtain an immediate cash advance, an Advance Internet customer must sign a contract stating that he is subscribing to a year of \u201cinternet access,\u201d and another document stating that the cash payment is not a loan. This contract, in addition to obligating the customer to repay the cash advance and periodic fees, also allows him to use defendants\u2019 office computers for a few hours a week, and to make limited use of other office equipment to fax or scan documents.\nOn the basis of these additional features of the new contracts, defendants contend that they are now \u201cinternet service providers\u201d offering legitimate contracts for provision of internet services. They call the immediate cash advance a \u201crebate\u201d on the \u201cinternet services\u201d contract, and describe the periodic fees of $40~$100 a month as the price for \u201cinternet access.\u201d However, this Court does not have to accept defendants\u2019 characterization of these transactions, for \u201cif the form of the transaction is a subterfuge to conceal an exaction of more than the legal rate of interest on what is in fact a loan and not a sale, the transaction will be regarded according to its true character and will be held usurious.\u201d Bank v. Merrimon, 260 N.C. 335, 338, 132 S.E.2d 692, 694 (1963) (citing Ripple, 193 N.C. 422, 137 S.E. 156). Accordingly, we next examine the competent record evidence, bearing in mind that in responding to a summary judgment motion, \u201c[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (2003).\nUncontradicted evidence establishes that:\n1. As Advance Til Payday, defendants offered high interest short term loans. Their advertising emphasized \u201cinstant cash.\u201d Advance Internet\u2019s flyers, store signs, and other advertising continued to focus on the immediate cash, and Advance Internet is still listed under \u201cLoans\u201d in some Yellow Pages.\n2. Advance Internet continued to use most of the same stores and to employ many of the same people as did Advance Til Payday. Advance Internet also serves many of the same customers as Advance Til Payday.\n3. More than 20 affidavits were submitted from Advance Internet customers stating that he or she had signed an Advance Internet contract solely to obtain immediate cash, and not to have computer access. These affidavits were corroborated by a phone survey of Advance Internet customers, and by testimony of certain Advance Internet managers and employees. No evidence was offered that any person had ever patronized Advance Internet to obtain internet service [s],\n4. An Advance Internet customer must show proof of employment and of a checking account. The amount of cash he receives is determined by reference to the customer\u2019s income, rather than his need for computer services.\n5. Under Advance Internet contracts, a customer (1) obtains instant cash; (2) is obligated either to pay 20% of the cash amount every two weeks for a year, or else pay back the cash advance and all accrued periodic payments; and (3) generally authorizes defendant to debit his checking account if he is delinquent in these payments.\nWe conclude that the undisputed evidence of defendants\u2019 advertising and business practices \u201csupports the trial court\u2019s finding that [defendants\u2019] sale of Internet service is merely a guise for its operation as a small loan business.\u201d Short on Cash.net, 811 N.E.2d at 826.\nWe have also considered the scant monetary value of the purported \u201cinternet service\u201d offered by defendants. Undisputed record evidence shows that legitimate internet service providers charge less than ten cents an hour for 24 hour a day/7 day a week internet access from a customer\u2019s home computer, and access to certain services such as \u201cweb-mail\u201d from any computer with internet access. Defendants, on the other hand, charge 100 times more ($10.00 an hour) for very limited internet access a few hours a week, available only on defendants\u2019 office computers, and only by appointment during defendants\u2019 business hours. Moreover, North Carolina public libraries offer free access to the internet.\nDefendants contend that their charges for internet access are substantially similar to those of other private entities where individuals pay for hourly computer access. However, at such establishments, customers receive the benefit of the contracted-for product, per-hour computer access. As regards Advance Internet contracts, the substance of the \u201cproduct\u201d is the \u201ccash rebate\u201d. And customers who want hourly computer access at other private entities are not required to execute a one-year contract requiring repeated payments on a \u201crebate\u201d. Defendants basically argue that their contracts are the equivalent of agreements between consumers and other private entities because the actual per-hour charges are substantially similar. We conclude that this argument is untenable, and that no meaningful comparison can be made between the arrangements at issue and per-hour computer access at other private entities.\nDefendants also characterize the monies received by its customers as \u201ccash rebates.\u201d Black\u2019s Law Dictionary defines \u201crebate\u201d as \u201c[a] return of part of a payment, serving as a discount or reduction.\u201d Black\u2019s Law Dictionary 1295 (8th ed. 2004). However, the monies provided to defendants\u2019 consumers do not represent a \u201creturn\u201d or a \u201cdiscount\u201d or a \u201creduction\u201d of anything. Instead, the \u201ccash rebates\u201d stand alone, and are not related or associated with any \u201cpayment\u201d for something of real value. See Short on Cash.net, 811 N.E.2d at 825 (applying similar reasoning).\nWe conclude that the fair market value of Advance Internet contracts is negligible or zero, and that the evidence suggests no rational reason to contract with defendant, except to get immediate cash.\nTo review, in return for immediate cash, Advance Internet customers must repay both the sum advanced and an additional fee of at least 20% of the amount of cash received. The \u201cinternet access\u201d that is the ostensible subject of the contract has little or no monetary value. We conclude that, notwithstanding the facial resemblance to internet service contracts, it is transparently obvious that defendants are offering loans, not bona fide internet service contracts. Further, the dollar amount of the periodic payments, when calculated as interest, reveals that the annual rate of interest on these loans is greatly in excess of the maximum permitted under North Carolina law. Such transactions meet the definition of loans offered at usurious interest rates.\nDefendants nevertheless argue that the determination of whether their internet service contracts constitute disguised loans is an issue of fact that must be decided by a jury. \u201cWhere there are genuine, conflicting issues of material fact, the motion for summary judgment must be denied so that such disputes may be properly resolved by the jury as the trier of fact.\u201d Howerton v. Arai Helmet, Ltd., 358 N.C. 440, 468, 597 S.E.2d 674, 694 (2004) (citation omitted). \u201cDetermining what constitutes a genuine issue of material fact requires consideration of whether an issue is supported by substantial evidence.\u201d Eason v. Union Cty., 160 N.C. App. 388, 391, 585 S.E.2d 452, 455 (2003) (citing Dewitt v. Eveready Battery Co., Inc., 355 N.C. 672, 681, 565 S.E.2d 140, 146 (2002)). \u201c \u2018Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,\u2019 and means \u2018more than a scintilla or a permissible inference [.]\u2019 \u201d Dewitt, 355 N.C. at 681, 565 S.E.2d at 146 (quoting Thompson v. Board of Education, 292 N.C. 406, 414, 233 S.E.2d 538, 544 (1977), and Utilities Commission v. Trucking Co., 223 N.C. 687, 690, 28 S.E.2d 201, 203 (1943)) (citation omitted). In the instant case, the uncontra-dicted material facts provide no basis for a reasonable fact-finder to conclude the Advance Internet contracts were anything other than short-term loans. Because the evidence presents no genuine issue of material fact, the court\u2019s summary judgment order constituted a ruling on a question of law.\nIn reaching this conclusion, we reject defendants\u2019 argument that plaintiff must show that in \u201ceach and every\u201d transaction, defendant(s) and the customer had the specific \u201ccorrupt intent\u201d to enter into a usurious loan agreement. The law is clear that the \u201ccorrupt intent required to constitute usury is simply the intentional charging of more for money lent than the law allows. Where the lender intentionally charges the borrower a greater rate of interest than the law allows and his purpose is clearly revealed on the face of the instrument, a corrupt intent to violate the usury law on the part of the lender is shown.\u201d Kessing, 278 N.C. at 530, 180 S.E.2d at 827. Further, in none of the cases cited by defendants is the borrower\u2019s intent at issue. We also note that this plaintiff\u2019s claim is based, not on the personal intentions of individuals, but on defendants\u2019 ongoing pattern and practice of executing thousands of essentially identical usurious loan contracts. \u201cUniform contracts, like all other contracts, must conform to law.\u201d Crow v. Citicorp Acceptance Co., 319 N.C. 274, 286, 354 S.E.2d 459, 467 (1987).\nDefendants also attach great significance to the issue of whether some customers actually used defendants\u2019 computers. Defendants assert that competent record evidence suggests that up to 25% of its customers used their internet services. This assertion is based on the affidavit and deposition testimony of an Advance Internet regional manager, who stated that a fourth of their customers used the computers. This witness conceded that log books were not required before May 2003; that her personal knowledge did not extend beyond the five stores in her region; that she did not know how many hours a week the computers were used; and that she based her opinion on \u201cflipping through\u201d stacks of contracts and glancing at the rebate level of different contracts. This testimony does little to help defendants survive summary judgment because, as discussed above, a customer\u2019s contractual right to make limited use of defendants\u2019 office computers has, at most, a negligible fair market value. Therefore, if some customers used defendants\u2019 computers to access the internet, this does not change the reality that such use was incidental to the central purpose of obtaining a cash loan.\nWe conclude that the evidence establishes as a matter of law (1) that defendants executed contracts for usurious loans, not legitimate sales contracts, and (2) that there is no evidentiary basis upon which a reasonable fact-finder could reach a contrary conclusion. Accordingly, the trial court did not err by entering summary judgment for plaintiff on its claims of usury and violation of the Consumer Finance Act.\nDefendants argue next that the trial court erred by granting summary judgment on plaintiff\u2019s claim of unfair or deceptive trade practices. We disagree.\n\u201cIn order to establish a prima facie claim for unfair trade practices, a plaintiff must show: (1) defendant committed an unfair or deceptive act or practice, (2) the action in question was in or affecting commerce, and (3) the act proximately caused injury to the plaintiff.\u201d Dalton v. Camp, 353 N.C. 647, 656, 548 S.E.2d 704, 711 (2001) (citing Spartan Leasing Inc. v. Pollard, 101 N.C. App. 450, 460, 400 S.E.2d 476, 482 (1991)). \u201cThe determination of whether an act or practice is an unfair or deceptive practice that violates N.C.G.S. \u00a7 75-1.1 is a question of law for the court.\u201d Gray v. N.C. Ins. Underwriting Ass\u2019n, 352 N.C. 61, 68, 529 S.E.2d 676, 681 (2000) (citation omitted).\n[A] practice is deceptive if it has the tendency to deceive. . . . \u2018[A] practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.\u2019 . . . Moreover, where a party engages in conduct manifesting an inequitable assertion of power or position, such conduct constitutes an unfair act or practice.\nId. (quoting Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981), and citing Johnson v. Beverly-Hanks & Assoc., 328 N.C. 202, 208, 400 S.E.2d 38, 42 (1991)).\nDefendants herein assert that, if one assumes that their customers knew they were executing contracts for a loan rather than internet service, then defendants\u2019 conduct was not \u201cdeceptive.\u201d However, \u201c[p]roof of actual deception is not necessary; it is enough that the statements had the capacity to deceive.\u201d Pinehurst, Inc. v. O\u2019Leary Bros. Realty, 79 N.C. App. 51, 59, 338 S.E.2d 918, 923 (1986) (citation omitted). We observe that defendants did not inform consumers that they were executing documents in violation of North Carolina\u2019s Consumer Finance Act. On all the facts of this case, we conclude that defendants\u2019 contracts \u201chad the capacity to deceive.\u201d\nMoreover, \u201cviolations of statutes designed to protect the consuming public and violations of established public policy may constitute unfair and deceptive practices.\u201d Stanley v. Moore, 339 N.C. 717, 723, 454 S.E.2d 225, 228 (1995). In this regard, we note that it is a \u201cparamount 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). Defendants\u2019 practice of offering usurious loans was a clear violation of this policy. We conclude that the trial court did not err by ruling as a matter of law that this constitutes unfair or deceptive trade practices, in violation of N.C. Gen. Stat. \u00a7 75-1.1 (2003).\nDefendants argue next that the court erred by decreeing that \u201cAdvance Internet rebate contracts with North Carolina consumers [were] cancelled pursuant to N.C. Gen. Stat. \u00a7 75-15.1,\u201d and by requiring \u201call funds collected by the defendants pursuant to such contracts ... be refunded to consumers.\u201d We disagree.\nThe trial court\u2019s order is clearly authorized by statute. N.C. Gen. Stat. \u00a7 53-166(d) (2003) provides in relevant part that any loan made in violation of the statute \u201cshall be void and the licensee or any other party in violation shall have no right to collect, receive or retain any principal or charges whatsoever with respect to such loan.\u201d And, under N.C. Gen. Stat. \u00a7 24-2 (2003), the penalty for charging a higher interest rate than permitted by law is \u201cforfeiture of the entire interest . . . which has been agreed to be paid thereon.\u201d\nDefendants\u2019 primary argument is that, because the evidence raised genuine issues of material fact regarding the nature of their contracts, the trial court erred by ordering the contracts voided and money refunded to their customers. Having concluded that the trial court did not err by granting summary judgment for plaintiffs, we necessarily have resolved this issue against defendants. Defendants also argue that the court was required to apportion the defendants\u2019 refund of \u201cfunds collected by the defendants pursuant to [Advance Internet] contracts\u201d rather than impose what amounts to joint and several liability on them. However, defendants offer no argument or authority to support this position. See N.C.R. App. P. 28 (b)(6) (\u201cAssignments of error not set out in appellant\u2019s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned.\u201d).\nDefendants next argue that the trial court erred by allowing John Gill to be named as a defendant, and by entering summary judgment against him individually. We disagree.\nFirst, defendants never appealed the order allowing Gill\u2019s addition as a defendant. \u201c \u2018Without proper notipe of appeal, the appellate court acquires no jurisdiction and neither the court nor the parties may waive the jurisdictional requirements even for good cause shown under Rule 2.\u2019 \u201d Sillery v. Sillery, 168 N.C. App. 231, 234, 606 S.E.2d 749, 751 (2005) (quoting Bromhal v. Stott, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483 (1994)). Defendants argue that despite their failure to appeal from the order adding Gill as a defendant, this Court has jurisdiction to review the order under N.C. Gen. Stat. \u00a7 1-278 (2003). G.S. \u00a7 1-278 states that on appeal, \u201cthe court may review any intermediate order involving the merits and necessarily affecting the judgment.\u201d However, \u201cG.S. 1-278 permits us, incident to an appeal from a final judgment or order, to review intermediate orders[.]\u201d In re Foreclosure of Allan & Warmbold Constr. Co., 88 N.C. App. 693, 696, 364 S.E.2d 723, 725 (1988) (emphasis added). Defendants cite no authority for the proposition that G.S. \u00a7 1-278 requires us to review an interlocutory order, and we find none. We conclude that defendants failed to preserve this issue for review.\nSecondly, our review of the record makes it clear that the trial court did not err by allowing plaintiff\u2019s motion to amend its complaint. Defendants argue that the trial court erred because the motion for amendment did not assert any grounds upon which Gill might be personally liable for corporate acts. Defendants cite N.C. Gen. Stat. \u00a7 57C-3-30 (2003), in support of their position. The statute provides, in pertinent part, that:\n(a) A person who is a member, manager, director, executive, or any combination thereof of a limited liability company is not liable for the obligations of a limited liability company solely by reason of being a member, manager, director, or executive and does not become so by participating, in whatever capacity, in the management or control of the business. A member, manager, director, or executive may, however, become personally liable by reason of that person\u2019s own acts or conduct.\n(b) A member of a limited liability company is not a proper party to proceedings by or against a limited liability company[.] . . .\nN.C. Gen. Stat. \u00a7 57C-3-30(a) and (b) (2003) (emphasis added). Thus, regardless of whether Section 57C-3-30(b) restricts the circumstances in which a member of a limited liability company (LLC) may be added as a party to a lawsuit, Section 57C-3-30(a) clearly anticipates that a member who is also a \u201cmanager, director, executive, or any combination thereof\u2019 might be made a defendant and \u201cbecome personally liable by reason of [his] own acts or conduct.\u201d\nIn the instant case, plaintiffs motion to add Gill as a defendant asserted that NCCS, Loans, Inc. and JAG N.C., LLC were \u201centirely owned and controlled\u201d by Gill, who also managed and controlled JAGJRTX, LLC; that defendants tried to evade complying with plaintiffs discovery requests by shifting ownership of Advance Internet from JAGJRTX, LLC, to JAG N.C.; and that \u201cGill may continue to create shell entities in an attempt to evade liability!-]\u201d Plaintiff also submitted a proposed amended complaint alleging that \u201cGill is the organizer, managing member and principal operator of JAG, NC, LLC\u201d and that \u201cGill has directed, and is responsible for, all the unlawful practices alleged in this complaint.\u201d (emphasis added). We conclude that these allegations of Gill\u2019s \u201cown acts and conduct\u201d were sufficient to allow his addition as a party defendant. \u201cA motion to amend pleadings is addressed to the sound discretion of the trial court; the trial court\u2019s ruling is not reviewable absent a showing of an abuse of discretion.\u201d Warren v. Gen. Motors Corp., 142 N.C. App. 316, 319, 542 S.E.2d 317, 319 (2001) (citing Naas v. Kelso, 76 N.C. App. 77, 80, 331 S.E.2d 759, 761 (1985)). We conclude that the trial court did not abuse its discretion by granting plaintiff\u2019s motion to add Gill as a defendant.\nDefendants also argue that the trial court erred by granting summary judgment against Gill, again on the grounds that there was no evidence that would subject him to personal liability. We disagree.\nUnder N.C. Gen. Stat. \u00a7 1A-1, Rule 8(d) (2003), \u201c[a]verments in a pleading to which \u00e1 responsive pleading is required . . . are admitted when not denied in the responsive pleading.\u201d In the instant case, plaintiff\u2019s amended complaint alleged that \u201cGill has directed, and is responsible for, all the unlawful practices alleged in this complaint.\u201d Gill failed to file an answer to the complaint.\nWe note that \u201cfor purposes of summary judgment, a defendant\u2019s failure to file answer does not constitute a conclusive admission of the allegations in a plaintiff\u2019s complaint so as to preclude such defendant from offering affidavits or testimony in opposition to the motion.\u201d Bell v. Martin, 299 N.C. 715, 720, 264 S.E.2d 101, 104-05 (1980). Accordingly, Gill had the right to offer evidence opposing summary judgment, notwithstanding his failure to file an answer.\nHowever, Gill offered no evidence contradicting plaintiff\u2019s assertion that he directed and controlled the illegal activities of the corporate defendants. We conclude that, because defendant neither filed an answer nor submitted any evidence contradicting the allegations of plaintiff\u2019s complaint, he is deemed to have admitted the allegation in the complaint that \u201cGill has directed, and is responsible for, all the unlawful practices alleged in this complaint.\u201d We further conclude that the trial court did not err by entering summary judgment against Gill individually.\nFor the reasons discussed above, we conclude that the trial court did not err by entering summary judgment for plaintiffs, and that the trial court\u2019s order should be\nAffirmed.\nJudges WYNN and CALABRIA concur.\n. Thus, a customer who cannot repay the cash advance as a lump sum will have to make 26 payments of 20% of the cash amount, or $520 on a $100 cash advance.", "type": "majority", "author": "LEVINSON, Judge." } ], "attorneys": [ "Attorney General Roy Cooper, by Special Deputy Attorney General L. McNeil Chestnut, Assistant Attorney General Philip A. Lehman, and Assistant Attorney General M. Lynne Weaver, for the State.", "Ellis and Winters LLP, by Matthew W. Sawchak, Thomas D. Blue, Jr., and George F. Sanderson, III, for defendants-appellants." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA ex rel. ROY COOPER, Attorney General, and JOSEPH A. SMITH, JR., Commissioner of Banks, Plaintiff v. NCCS LOANS, INC.; JAGJRTX, LLC; JAG NC, LLC d/b/a \u201cAdvance Internet\u201d and \u201cAdvance Til Payday;\u201d and JOHN A. GILL, Defendants\nNo. COA04-1660\n(Filed 6 December 2005)\n1. Interest\u2014 loans \u2014 usury\u2014Consumer Finance Act\nThe trial court did not err by entering summary judgment for plaintiffs on the issues of whether defendants violated the Consumer Finance Act and made usurious loans when Advance Internet customers were required to repay both a cash advance that was purportedly a \u201crebate\u201d on an internet services contract and an additional fee of at least 20% of the amount of cash received where the internet access that was the ostensible subject of the contract had little or no monetary value, because: (1) the undisputed evidence of defendants\u2019 advertising and business practices supported the trial court\u2019s finding that defendants\u2019 sale of internet service is merely a guise for its operation as a small loan business; (2) defendants charge 100 times more per hour than legitimate internet service providers for very limited internet access a few hours a week available only on defendants\u2019 office computers and only by appointment during defendants\u2019 business hours, and North Carolina public libraries offer free access to the internet; (3) the substance of the product is the cash rebate, and the cash rebates are not related or associated with any payment for something of real value; (4) the fair market value of Advance Internet contracts is negligible or zero, and the evidence suggested no rational reason to contract with defendant except to get immediate cash; (5) the dollar amount of the periodic payments, when calculated as interest, revealed that the annual rate of interest on these loans was greatly in excess of the maximum permitted under North Carolina law; (6) the uncontradicted material facts provided no basis for a reasonable factfinder to conclude the Advance Internet contracts were anything other than short-term loans; (7) plaintiff is not required to show that in each and every transaction defendants and the customer had the specific corrupt intent to enter into a usurious loan agreement; and (8) the fact that some customers may have used defendants\u2019 computers to access the internet does not change the reality that such use was incident to the central purpose of obtaining a cash loan.\n2. Unfair Trade Practices\u2014 violation of North Carolina\u2019s Consumer Finance Act \u2014 usurious loans\nThe trial court did not err by entering summary judgment for plaintiffs on the issue of whether defendants engaged in unfair or deceptive trade practices when Advance Internet customers were required to repay both a cash advance that was purportedly a \u201crebate\u201d on an internet services contract and an additional fee of at least 20% of the amount of cash received while the internet access that was the ostensible subject of the contract had little or no monetary value, because: (1) proof of actual deception is not necessary, but instead it is enough that the statements had the capacity to deceive; (2) defendants did not inform consumers that they were executing documents in violation of North Carolina\u2019s Consumer Finance Act, and based on all the facts defendants\u2019 contracts had the capacity to deceive; and (3) it is a paramount public policy of North Carolina to protect its resident borrowers through the application of North Carolina interest laws, and defendants\u2019 practice of offering usurious loans was a clear violation of this policy.\n3. Contracts\u2014 loans \u2014 charging higher interest rate\u2014 cancellation\nThe trial court did not err by decreeing that Advance Internet rebate contracts with North Carolina consumers were cancelled pursuant to N.C.G.S. \u00a7 75-15.11 and by requiring all funds collected by defendants pursuant to such contracts be refunded to consumers, because: (1) the trial court\u2019s order is authorized by N.C.G.S. \u00a7 53-166(d) and N.C.G.S. \u00a7 24-2; (2) having already concluded that the trial court did not err by granting summary judgment for plaintiffs, this issue has necessarily been resolved against defendants; and (3) although defendants contend the court was required to apportion defendants\u2019 refund of funds collected by defendants pursuant to the contracts, defendants failed to offer any argument or authority to support this position as required by N.C. R. App. R 28(b)(6).\n4. Pleadings\u2014 motion to amend \u2014 additional party\nThe trial court did not abuse its discretion by allowing plaintiff\u2019s motion to amend the complaint to add John Gill as a defendant and by entering summary judgment against him individually, because: (1) defendants failed to appeal the order allowing Gill\u2019s addition as a defendant; (2) defendants cite no authority for the proposition that N.C.G.S. \u00a7 1-278 requires the Court of Appeals to review an interlocutory order; (3) regardless of whether N.C.G.S. \u00a7 57C-3-30(b) restricts the circumstances in which a member of a limited liability company may be added as a party to a lawsuit, N.C.G.S. \u00a7 57C-3-30(a) anticipates that a member who is also a manager, director, executive, or any combination thereof might be made a defendant and become personally liable by reason of his own acts or conduct; and (4) defendant had the right to offer evidence opposing summary judgment, notwithstanding his failure to file an answer, but defendant offered no evidence contradicting plaintiffs assertion that he directed and controlled the illegal activities of corporate defendants.\nAppeal by defendants from judgment entered 9 September 2004 by Judge W. Osmond Smith, III in Wake County Superior Court. Heard in the Court of Appeals 13 September 2005.\nAttorney General Roy Cooper, by Special Deputy Attorney General L. McNeil Chestnut, Assistant Attorney General Philip A. Lehman, and Assistant Attorney General M. Lynne Weaver, for the State.\nEllis and Winters LLP, by Matthew W. Sawchak, Thomas D. Blue, Jr., and George F. Sanderson, III, for defendants-appellants." }, "file_name": "0630-01", "first_page_order": 660, "last_page_order": 674 }