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      "JUANITA RICHARDSON and ROBERT and GLORIA GOWER, on behalf of themselves and all others similarly situated, Plaintiffs v. BANK OF AMERICA, N.A. and NATIONSCREDIT FINANCIAL SERVICES CORPORATION, Defendants"
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        "text": "McGEE, Judge.\nJuanita Richardson, Robert Gower, Gloria Gower, and Joyce M. Smith, on behalf of themselves and all others similarly situated (collectively Plaintiffs), filed this action on 10 May 2002 against, inter alia, Bank of America, N.A. (Bank of America) and its wholly-owned subsidiary, NationsCredit Financial Services Corporation (Nations-' Credit) (collectively Defendants). Plaintiffs alleged claims for unfair and deceptive trade practices (UDTP) under N.C. Gen. Stat. \u00a7 75-1.1, unjust enrichment, breach of the duty of good faith and fair dealing, and punitive damages. Plaintiffs\u2019 claims arose out of the alleged sale by Defendants to Plaintiffs of single-premium credit insurance (SPCI) in association with mortgage loans.\nPlaintiffs filed their first amended complaint on 13 August 2002. Plaintiffs\u2019 first amended complaint alleged claims against only Bank of America and NationsCredit. Plaintiffs again alleged claims for UDTP, unjust enrichment, breach of the duty of good faith and fair dealing, and punitive damages.\nDefendants filed their answer and conditional counterclaim on 19 August 2002. Defendants asserted numerous defenses, including the statute of limitations. Defendants also asserted a counterclaim against those Plaintiffs who were in default and/or who owed deficiency balances, to become effective if and when a class was certified. Plaintiffs filed an answer on 5 September 2002 asserting several defenses to Defendants\u2019 conditional counterclaim.\nPursuant to Rule 2.1(a) of the General Rules of Practice, the case was designated as an exceptional case on 14 November 2002. Superior Court Judge Catherine C. Eagles was assigned to the case on 22 November 2002. The parties then engaged in extensive discovery.\nDefendants removed the action to the United States District Court for the Middle District of North Carolina on 20 June 2003, and that Court granted Plaintiffs\u2019 motion to remand the case back to the trial court on 10 March 2004. The trial court issued a class certification order on 14 June 2004, and defined the class as follows:\nNorth Carolina borrowers who obtained a loan before July 1, 2000, from . . . NationsCredit in the State of North Carolina, whose loans are secured or were secured by real property located in North Carolina, and who were sold single-premium credit life, disability, accident and health, or involuntary unemployment insurance with a term less than that of their loan, and who have not made a claim under any such credit insurance policy and who made payments on their loan at any point after May 10, 1998.\nThe trial court entered a supplementary scheduling order on 23 July 2004, ordering, inter alia, that discovery should be completed by 25 October 2004 and that the trial date be set for 4 April 2005. Discovery continued, and the trial court entered a comprehensive order on 23 November 2004 resolving all pending non-dispositive motions and revising and restating scheduling requirements. Defendants appealed this order on 21 December 2004, but Defendants subsequently dismissed their appeal.\nThe parties filed motions for summary judgment and partial summary judgment, along with memoranda in support of those motions, dated 19 January 2005. In a memorandum in response to Plaintiffs\u2019 motion for partial summary judgment, filed 31 January 2005, Defendants first raised the defense of federal preemption. The parties had also filed a joint statement of undisputed facts and proposed issues on 20 January 2005. In that statement, the parties agreed that the following facts were undisputed. NationsCredit sold Juanita Richardson and Robert and Gloria Gower SPCI on twenty-five year loans. The coverage term for the SPCI was ten years. NationsCredit loan officers sold the SPCI pursuant to agreements between NationsCredit and several insurance companies.\nIt was also undisputed that \u201c[w]ith [SPCI], the credit insurance premium was financed over the term of the loan. The premium for [SPCI] was calculated based upon the amount financed. The amount financed would include any charges for origination fees, points, loan discount fees, and other closing costs.\u201d It was further undisputed that NationsCredit\u2019s sales of SPCI were \u201cin or affecting commerce.\u201d\nThe parties further agreed that, at the time of the closing of their loans, Plaintiffs received and signed numerous documents and disclosure statements. Plaintiffs signed and received a statement that informed them that NationsCredit expected to profit from the sale of any insurance.\nIt was also undisputed that North Carolina allowed the sale of truncated credit insurance in connection with closed-end real estate loans. The SPCI sold by NationsCredit to Plaintiffs with loans of fifteen years or less was approved by the Department of Insurance. However, the SPCI sold to Plaintiffs having loans greater than fifteen years was not approved by the Department of Insurance.\nThe trial court entered an order on 10 March 2005 addressing parts of the 19 January 2005 motions for summary judgment. The trial court ruled that Defendants had waived any right to assert federal preemption as a defense by failing to assert the defense in their answer. The trial court also determined that the General Assembly\nexplicitly allowed the sale and implicitly allowed the financing of truncated single premium credit insurance in connection with real estate loans up to and including 15 years\u2019 duration and set the maximum premium rates for this insurance. Therefore, the mere sale and financing of these products at the maximum premium rate explicitly allowed by statute, cannot, by itself, be a[] UDTP and cannot be a violation of any duty the Defendants had of good faith and fair dealing.\nThe trial court also entered an order on 19 April 2005 regarding the statute of limitations on Plaintiffs\u2019 UDTP claims. The trial court noted that it was' undisputed that Plaintiffs\u2019 UDTP claims were based on Defend\u00e1nts\u2019 conduct before and during closing, and were not based upon Defendants\u2019 conduct after closing. The trial court concluded that the statute of limitations for Plaintiffs\u2019 UDTP claims \u201cbegan to run at the time of the loan closing when Class members signed and received copies of closing documents disclosing the sale of SPCI, the amount of the premium for the SPCI, its term, and the total amount financed at closing.\u201d The trial court also determined that \u201c[t]he fact that the financing of SPCI resulted in higher costs to the borrower directly attributable to the purchase of the SPCI and which higher costs would be paid for over the life of the loan is not material to the statute of limitations issue.\u201d The trial court therefore dismissed the UDTP claims of those Plaintiffs whose loans closed before 10 May 1998, or four years prior to the filing of the complaint.\nThe trial court filed an order regarding summary judgment on liability on 23 June 2005. The trial court determined that NationsCredit committed a UDTP as a matter of law as to those Plaintiffs who were sold SPCI in connection with loans greater than fifteen years. The trial court also ruled that NationsCredit breached the duty of good faith and fair dealing with respect to those Plaintiffs with loans greater than fifteen years. The trial court further ruled that \u201cit was [a] UDTP to tell a customer that there was a \u2018thirty day free look\u2019 as to SPCI when in fact if the SPCI was cancelled within the first 30 days the customer would pay increased costs[.]\u201d However, as to all other UDTP and breach of the duty of good faith and fair dealing liability issues, the trial court ruled in favor of Defendants. The trial court entered summary judgment accordingly.\nThe trial court entered an order regarding the method and procedure for calculating damages on 12 October 2005. With respect to Plaintiffs\u2019 remaining UDTP claims for the sale of SPCI with loans greater than fifteen years, the trial court held that the damages would be determined by adding the premium, interest, points, and fees associated with the purchase and financing of SPCI, and trebling that amount. Defendants argued that Plaintiffs should not be entitled to recover the entire premium amount because Plaintiffs received the benefit of insurance coverage. However, the trial court held that the SPCI sold to Plaintiffs with loans greater than fifteen years was an illegally sold insurance product and, therefore, the SPCI had no value that would reduce the amount of damages awarded to Plaintiffs. The trial court also ruled that any refund received by those Plaintiffs who cancelled their insurance policies should be deducted from any damages those Plaintiffs received. However, the trial court ruled that such refunds should be deducted after damages were trebled, rather than before. The trial court then established a process for assessing compensatory damages.\nThe trial court next entered an order on 12 October 2005 regarding summary judgment motions concerning Bank of America\u2019s liability and punitive damages. The trial court ruled .that the evidence was insufficient to support the direct liability of Bank of America for any of Plaintiffs\u2019 claims. The trial court also ruled the evidence was insufficient to pierce the corporate veil and hold Bank of America indirectly liable for the acts of NationsCredit. Therefore, the trial court dismissed all claims against Bank of America. In that same order, the trial court ruled that the evidence was sufficient to allow a jury determination as to whether NationsCredit was liable for punitive damages on Plaintiffs\u2019 remaining claims for breach of the duty of good faith and fair dealing. Therefore, the trial court denied Plaintiffs\u2019 and Defendants\u2019 motions for summary judgment as to the class claim for punitive damages.\nThe trial court then issued an order certifying the case for immediate appeal pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b). The trial court determined there was no just reason to delay appeal of its numerous orders and further ruled that immediate appeal and review would promote judicial economy.\nPlaintiffs filed their notice of appeal from twelve orders of the trial court on 9 November 2005. NationsCredit also filed its notice of appeal from ten orders of the trial court on 9 November 2005. Bank of America filed its notice of appeal from ten orders of the trial court on 21 November 2005. '\nStandard of Review\nSummary judgment is appropriate \u201cif 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.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (2005). The party who moves for summary judgment has the burden of \u201cestablishing the lack of any triable issue of fact.\u201d Pembee Mfg. Corp. v. Cape Fear Constr. Co., 313 N.C. 488, 491, 329 S.E.2d 350, 353 (1985). This burden may be met by \u201cproving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing through discovery that the opposing party cannot produce evidence to support an essential element of his claim[.]\u201d Collingwood v. G.E. Real Estate Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989)'. \u201c[T]he standard of review on appeal from summary judgment is whether there is any genuine issue of material fact and whether the moving party is entitled to a judgment as a matter of law.\u201d Bruce-Terminix Co. v. Zurich Ins. Co., 130 N.C. App. 729, 733, 504 S.E.2d 574, 577 (1998). We review the evidence in the light most favorable to the nonmoving party. Id.\nPlaintiffs\u2019 Appeal\nI.\nPlaintiffs argue the trial court erred by granting summary judgment for Defendants on Plaintiffs\u2019 claims involving loans with terms of fifteen years' or less. Although the trial court granted summ\u00e1ry judgment for Defendants on Plaintiffs\u2019 claims of UDTP and breach of the duty of good faith and fair dealing, Plaintiffs limit their argument to the summary judgment entered for Defendants on Plaintiffs\u2019 UDTP claims. Accordingly, Plaintiffs abandoned any claim of error as to summary judgment for Defendants on Plaintiffs\u2019 claims for breach of the duty of good faith and fair dealing. See N.C.R. App. P. 28(b)(6).\nN.C. Gen. Stat. \u00a7 75-1.1(a) (2005) provides that \u201c[u]nfair methods of competition in or affecting commerce, and unfair or deceptive acts or practices in or affecting commerce, are declared unlawful.\u201d N.C. Gen. Stat. \u00a7 75-16 (2005) creates a cause of action to redress injuries resulting from violations of Chapter 75 of the General Statutes and provides that any damages recovered shall be trebled. These two statutes establish a private cause of action for consumers. Gray v. N.C. Ins. Underwriting Ass\u2019n, 352 N.C. 61, 68, 529 S.E.2d 676, 681, reh'g denied, 352 N.C. 599, 544 S.E.2d 771 (2000).\n\u201cTo prevail on a claim of unfair and deceptive trade practices, a plaintiff must show: (1) [the] defendants committed an unfair or deceptive act or practice; (2) in or affecting commerce; and (3) that [the] plaintiff was injured thereby.\u201d First Atl. Mgmt. Corp. v. Dunlea Realty Co., 131 N.C. App. 242, 252, 507 S.E.2d 56, 63 (1998). \u201cA 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.\u201d Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). \u201c[A] practice is deceptive if it has the capacity or tendency to deceive; proof of actual deception is not required.\u201d Id. \u201c[U]nder N.C.G.S. \u00a7 75-1.1, it is a question for the jury as to whether [a party] committed the alleged acts, and then it is a question of law for the court as to whether these proven facts constitute an unfair or deceptive trade practice.\u201d United Laboratories, Inc. v. Kuykendall, 322 N.C. 643, 664, 370 S.E.2d 375, 389 (1988).\nIn Gray, our Supreme Court recognized that \u201cwhere a party engages in conduct manifesting an inequitable assertion of power or position, such conduct constitutes an unfair act or practice.\u201d Gray, 352 N.C. at 68, 529 S.E.2d at 681. In the present case, Plaintiffs arg\u00fce that, based upon Gray, Defendants committed a UDTP by \u201cinequitably assert[ing] their superior power while dealing with a subset of the population known to be necessitous and less sophisticated than borrowers in the prime market.\u201d However, this was not the basis for UDTP liability argued by Plaintiffs before the trial court.\nIn its order regarding summary judgment on liability, the trial court noted that it had earlier ordered Plaintiffs to \u201cstate specifically and clearly which facts they contend would, if established, constitute [a] UDTP[.]\u201d Plaintiffs contended the following facts established that Defendants committed a UDTP as a matter of law with respect to borrowers having loans with terms of fifteen years or less:\nAGREED FACT 26: The NationsCredit loan officers who sold credit insurance to NationsCredit borrowers in North Carolina were licensed insurance agents. The Agency Agreement between American Bankers Life Assurance Company of Florida and NationsCredit Insurance Agency, the Administrative Accounting Agreement between Protective Life Insurance Company and NationsCredit Insurance Agency, and the Administrative Agreement between Balboa Life Insurance Company and NationsCredit Insurance Agency provide that NationsCredit is responsible for obtaining the licenses and other authorizations and appointments necessary to transact business under those agreements.\nUNDISPUTED FACT 7: The Defendant NationsCredit sought and dealt with credit insurers that would pay the most compensation to Defendant NationsCredit without regard for the cost of credit insurance to NationsCredit borrowers.\nUNDISPUTED FACT 10: The Defendant NationsCredit gave no serious consideration to, and did not investigate the possibility of, selling monthly pay credit insurance products in connection with the loans at issue because such products resulted in lower profits to NationsCredit.\nUNDISPUTED FACT 11: In the long run for borrowers and taking into account interest and fees/points paid by borrowers, monthly pay credit insurance was less expensive than single premium credit insurance providing the same amount of benefits.\nUNDISPUTED FACT 12: If NationsCredit had seriously been interested in the possibility of selling monthly pay credit insurance to its borrowers, it could have found an insurance company to write and seek regulatory approval for such coverage.\nAGREED FACT 30: NationsCredii\u2019s credit insurance sales were in or affecting commerce.\nThe trial court determined that these facts did not constitute a UDTP as a matter of law. The trial court determined that\n[t]he product sold was explicitly allowed to be sold by the North Carolina [General Assembly], and the financing of that product was implicitly allowed by the [General Assembly]. See discussion in Court\u2019s Order Signed March 3, 2005, entitled \u201cOrder Addressing Parts of the 1/19/05 Motions for Summary Judgment,\u201d pages 7-10. For those class members whose loans were for a period up to and including 15 years, the policies were approved by the Department of Insurance and there is no claim at this stage that the premiums charged exceeded the maximum rate allowed by law.\nThe trial court also stated the following:\nThat there was a product available which would have been less expensive for all or almost all of NationsCredit\u2019s customers; that NationsCredit did not seriously consider selling it; and that this alternative product would have resulted in lower profits for NationsCredit does not make the sale and financing of SPCI a[] [UDTP],\nIn the trial court\u2019s earlier order addressing parts of the 19 January 2005 motions for summary judgment, the trial court concluded that the General Assembly\nexplicitly allowed the sale and implicitly allowed the financing of truncated single premium credit insurance in connection with real estate loans up to and including 15 years\u2019 duration and set the maximum premium rates for this insurance. Therefore, the mere sale and financing of these products at the maximum premium rate explicitly allowed by statute, cannot, by itself, be [a] UDTP and cannot be a violation of any duty the Defendants had of good faith and fair dealing.\nFor the reasons stated below, we hold that the trial court correctly concluded that the sale of SPCI was explicitly allowed by statute.\nPlaintiffs also argue the fact that the sale and financing of SPCI was implicitly allowed by the General Assembly did not confer blanket authorization to sell SPCI under any circumstances. Plaintiffs cite Country Club of Johnston Cty., Inc. v. U.S. Fidelity & Guar. Co., 150 N.C. App. 231, 243-45, 563 S.E.2d 269, 277-78 (2002), where our Court held that a party need not prove a violation of the insurance statutes to prove a violation of N.C.G.S. \u00a7 75-1.1. However, the trial court in the present case did not hold that the sale of SPCI was implicitly allowed by the General Assembly. Rather, the trial court held that the sale of SPCI on loans of fifteen years or less was explicitly allowed by the insurance statutes.\nIt was undisputed that the SPCI sold by NationsCredit to Plaintiffs with loans of fifteen years or less was approved by the Department of Insurance. It was also undisputed that North Carolina allowed the sale of truncated credit insurance in connection with closed-end real estate loans. Moreover, N.C. Gen. Stat. \u00a7 58-57-35(b) provides:\nThe premium or cost of credit life, disability, or unemployment insurance, when written by or through any lender or other creditor, its affiliate, associate or subsidiary shall not be deemed as interest or charges or consideration or an amount in excess of permitted charges in connection with the loan or credit transaction and any gain or advantage to any lender or other creditor, its affiliate, associate or subsidiary, arising out of the premium or commission or dividend from the sale or provision of such insurance shall not be deemed a violation of any other law, general or special, civil or criminal, of this State, or of any rule, regulation or order issued by any regulatory authority of this State.\nN.C. Gen. Stat. \u00a7 58-57-35(b) (2005) (emphasis added). This statute bars claims that seek to recover premiums associated with the sale of SPCI under Chapter 58. We hold that because the credit insurance sold to Plaintiffs with loans of fifteen years or less was authorized by the Department of Insurance, and because N.C.G.S. \u00a7 58-57-35(b) provides that any gain to a lender from the sale of SPCI shall not be a violation of any other law, the trial court did not err by granting Defendants\u2019 motion for summary judgment. See Pinney v. State Farm Mut. Ins. Co., 146 N.C. App. 248, 256-57, 552 S.E.2d 186, 192 (2001), disc, review denied, 356 N.C. 438, 572 S.E.2d 788 (2002) (holding that providing UM coverage without also providing UIM coverage could not amount to a UDTP because N.C. Gen. Stat. \u00a7 20-279.21(b)(4) specifically authorized drivers to obtain UM coverage alone, or combined with UIM coverage, and the. statute required only UM coverage to be offered \u201cto insureds whose policies reflect only the minimum statutory liability coverage.\u201d).\nRelying on McMurray v. Surety Federal Savings & Loan Assoc., 82 N.C. App. 729, 348 S.E.2d 162 (1986), cert. denied, 318 N.C. 695, 351 S.E.2d 748 (1987), Plaintiffs argue that North Carolina law imposes a heightened duty on a bank when the subject of credit insurance is broached. In McMurray, one borrower, who had credit life insurance, transferred his interest in real property to a co-borrower who did not have credit life insurance. Id. at 729, 348 S.E.2d at 163. The plaintiffs argued that the loan officer in charge of the loan transfer was under a legal duty to offer credit life insurance to the transferee. Id. at 730, 348 S.E.2d at 164. Specifically, the plaintiffs in McMurray relied upon an Ohio case, Stone v. Davis, 419 N.E.2d 1094 (Ohio 1981), cert. denied, Cardinal Federal Savings & Loan Association v. Davis, 454 U.S. 1081, 70 L. Ed. 2d 614 (1981), where the Supreme Court of Ohio held that \u201c \u2018in broaching the subject of mortgage insurance to a loan customer, a lending institution has a duty to advise the customer as to how this insurance may be procured.\u2019 \u201d McMurray, 82 N.C. App. at 732, 348 S.E.2d at 164-65 (quoting Stone, 419 N.E.2d at 1099). The Supreme Court of Ohio based its holding on a finding that a bank acts as a fiduciary when the bank broaches the subject of mortgage insurance. Id. at 732, 348 S.E.2d at 165 (citing Stone, 419 N.E.2d at 1098).\nHowever, in McMurray, our Court recognized that the lender never broached the subject of credit life insurance at the time of the loan transfer. Id. Our Court held that a lender does not have a duty to disclose the availability of or procedures for attaining credit life insurance at a loan transfer when the lender did not broach the subject and such insurance was never requested. Id. at 733, 348 S.E.2d at 165.\nPlaintiffs in the present case argue that Defendants did broach the subject of credit insurance with Plaintiffs. Therefore, Plaintiffs argue, Defendants owed a heightened duty to Plaintiffs. While NationsCredit did broach the subject of credit insurance with Plaintiffs, we first note that Stone is not the law in North Carolina. Moreover, under Stone, the lender only has a duty to explain how to procure credit insurance where the lender broaches the subject. Stone, 419 N.E.2d at 1099. Neither the Supreme Court of Ohio in Stone, nor our Court in McMurray, held that a lender has a duty to offer alternative credit insurance products or to offer credit insurance at a certain price. Therefore, McMurray is inapplicable to the present case.\nRelying upon Matter of Dickson, 432 F. Supp. 752 (W.D.N.C. 1977), Plaintiffs also argue Defendants owed Plaintiffs a fiduciary duty, which Defendants breached. In Dickson, the defendant charged the plaintiffs a premium that was approximately twice the \u201cpremium considered adequate by the North Carolina Insurance Commissioner, and received a 25% rebate as a commission.\u201d Id. at 760-61. The court held that because the defendant was a subsidiary of a bank holding company, it was a fiduciary of the plaintiffs for purposes of the sale of credit life insurance. Id. at 760. Therefore, the court held that the defendant committed a UDTP by charging inflated premiums and retaining a 25% commission without disclosing those facts to the plaintiffs. Id. at 761.\nWe note that we are not bound by Dickson. See Shepard v. Ocwen .Fed. Bank, FSB, 172 N.C. App. 475, 479, 617 S.E.2d 61, 64 (2005), aff\u2019d, 361 N.C. 137, 638 S.E.2d 197 (2006), reh\u2019g denied, 361 N.C. 371, 643 S.E.2d 404 (2007) (recognizing that \u201c[although we are not bound by federal case law, we may find their analysis and holdings persuasive.\u201d). Moreover, Dickson is distinguishable. In the present case, unlike in Dickson, it is undisputed that NationsCredit disclosed to Plaintiffs that it would make a profit from the sale of SPCI. Also, as we have already determined, the sale of SPCI on loans of fifteen years or less was explicitly authorized by the insurance statutes. Therefore, Dickson does not apply to the present case.\nIn support of their argument that Defendants owed Plaintiffs a fiduciary duty, Plaintiffs also rely upon introductory remarks to a federal regulation, Regulation Y, 12 C.F.R. \u00a7 222.4(a)(9) (1971). This regulation authorized banks to sell credit insurance under certain circumstances. The introductory remarks read as follows:\nIn connection with its action on this matter, the Board expressed the expectation that any holding company or subsidiary that acts as an insurance agent on the basis of the new regulatory provision will exercise a fiduciary responsibility \u2014 that is, by making its best effort to obtain the insurance at the lowest practicable cost to the customer.\nNonbanking Activities, 36 Fed. Reg. 15525-26 (Aug. 17, 1971) (to be codified at 12 C.F.R. pt. 222). However, the United States Court of Appeals for the District of Columbia Circuit, has stated that\n\u201c[t]he real dividing point between regulations and general statements of policy is publication in the Code of Federal Regulations . . . .\u201d Brock v. Cathedral Bluffs Shale Oil Co., 796 F.2d 533, 539 (D.C. Cir. 1986). Publication in the Code is not just a matter of agency convention. The regulations governing the Code provide that it shall contain \u201ceach Federal regulation of general applicability and legal effect.\u201d 1 C.F.R. \u00a7 8.1(a) (1996). See Brock, 796 F.2d at 539.\nAmerican Portland Cement Alliance v. E.P.A., 101 F.3d 772, 776 (D.C. Cir. 1996).\nIn the present case, the introductory remarks of the Federal Reserve Board were never adopted as a regulation and were never published in the Code of Federal Regulations, and therefore never had the force of law. Therefore, the introductory remarks to Regulation Y do not provide a basis for a finding that Defendants owed Plaintiffs a fiduciary duty. We hold the trial court did not err by granting Defendants\u2019 summary judgment motion on the UDTP claims of Plaintiffs having loans of fifteen years or less.\nII.\nPlaintiffs next argue the trial court erred by granting Bank of America\u2019s motion for summary judgment. Plaintiffs argue the trial court erred by failing to enter summary judgment for Plaintiffs on their UDTP and good faith and fair dealing claims against Bank of America. However, Plaintiffs argue that even if they were not entitled to summary judgment, genuine issues of material fact existed as to Bank of America\u2019s liability, precluding summary judgment for Bank of America.\nPlaintiffs argue the undisputed facts showed that Bank of America was directly liable, or at least indirectly liable, for the sale of SPCI to Plaintiffs. \u201c[A] parent \u2018corporation is [itself] responsible for the wrongs committed by its agents in the course of its business].]\u2019 \u201d United States v. Bestfoods, 524 U.S. 51, 65, 141 L. Ed. 2d 43, 58 (1998) (quoting United Mine Workers of America v. Coronado Coal Co., 259 U.S. 344, 395, 66 L. Ed. 2d 975, 989 (1922)). Additionally, \u201c[i]t is well recognized that courts will disregard the corporate form or \u2018pierce the corporate veil,\u2019 and extend liability for corporate obligations beyond the confines of a corporation\u2019s separate entity, whenever necessary to prevent fraud or to achieve equity.\u201d Glenn v. Wagner, 313 N.C. 450, 454, 329 S.E.2d 326, 330 (1985).\nIn North Carolina, courts use the \u201cinstrumentality rule\u201d to pierce the corporate veil. Id. Our Supreme Court has stated the instrumentality rule as follows:\n[If] the corporation is so operated that it is a mere instrumentality or alter ego of the sole or dominant shareholder and a shield for his activities in violation of the declared public policy or statute of the State, the corporate entity will be disregarded and the corporation and the shareholder treated as one and the same person, it being immaterial whether the sole or dominant shareholder is an individual or another corporation.\nHenderson v. Finance Co., 273 N.C. 253, 260,160 S.E.2d 39, 44 (1968). In order to prevail under the instrumentality rule, a party must prove three elements:\n\u201c(1) Control, not. mere majority or complete stock control, but complete domination, not only of finances, but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own; and\n(2) Such control must have been used by the defendant to commit fraud or wrong, to perpetrate the violation of a statutory or other positive legal duty, or a dishonest and unjust act in contravention of [the] plaintiffs legal rights; and\n(3) The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of.\u201d\nGlenn, 313 N.C. at 454-55, 329 S.E.2d at 330 (quoting Acceptance Corp. v. Spencer, 268 N.C. 1, 9, 149 S.E.2d 570, 576 (1966)). Our Courts have looked to the following factors when considering whether to pierce the corporate veil under the instrumentality rule: \u201c1. Inadequate capitalization (\u2018thin corporation\u2019). 2. Non-compliance with corporate formalities. 3. Complete domination and control of the corporation so that it has no independent identity. 4. Excessive fragmentation of a single enterprise into separate corporations.\u201d Id. at 455, 329 S.E.2d at 330-31 (internal citations omitted).\nIn the present case, Plaintiffs argue that Bank of America was directly liable because there were overlapping officers between Bank of America and NationsCredit and some NationsCredit employees received their paychecks from Bank of America. However, in Bestfoods, the United States Supreme Court recognized that a parent corporation is generally not liable for the acts of its subsidiaries. Bestfoods, 524 U.S. at 61, 141 L. Ed. 2d at 55-56. The Court also recognized that because there is a presumption that corporate officers act on behalf of the subsidiary alone when making decisions regarding that entity, \u201cit cannot be enough to establish liability ... that dual officers and directors made policy decisions and supervised activities at the facility.\u201d Id. at 69-70, 141 L. Ed. 2d at 61 (citations omitted). The Court further stated: \u201cIndeed, if the evidence of common corporate personnel acting at management and directorial levels were enough to support a finding of a parent corporation\u2019s direct operator liability under CERCLA, then the possibility of resort to veil piercing to establish indirect, derivative liability for the subsidiary\u2019s violations would be academic.\u201d Id. at 70, 141 L. Ed. 2d at 61.\nIn the present case, it is undisputed that Plaintiffs obtained their loans from NationsCredit. Bank of America was not a party to any of the loan transactions. As noted above, the mere fact that there were overlapping officers between Bank of America and NationsCredit is insufficient to impose direct liability on Bank of America for NationsCredit\u2019s actions. See id. at 69-70, 141 L. Ed. 2d at 61. Moreover, even though some NationsCredit employees received their paychecks from Bank of America, the parties stipulated that NationsCredit loan officers sold the SPCI at issue pursuant to agreements between NationsCredit and several insurance companies. Plaintiffs have not produced anything further to support their direct liability theory, and we hold the trial court did not err by granting summary judgment for Bank of America on this theory.\nPlaintiffs also argue that Bank of America is indirectly liable for NationsCredit\u2019s actions under the instrumentality rule. Plaintiffs argue that the undisputed evidence demonstrated that John Hickey, an officer of both Bank of America and NationsCredit, controlled the day-to-day operations of NationsCredit. To show that Bank of America dominated NationsCredit\u2019s operations, Plaintiffs rely upon John Hickey\u2019s testimony that his separate titles at Bank of America and NationsCredit simply existed on paper and were of no import. However, this evidence is insufficient to show the complete domination of finances, policy, and business practices that is necessary under the instrumentality rule. Plaintiffs have not shown evidence that any officer or director operated merely on behalf of Bank of America, rather than NationsCredit, when operating NationsCredit.\nPlaintiffs also argue that there was excessive fragmentation of Bank of America\u2019s subsidiaries. However, Plaintiffs do not rely upon evidence other than the fact that Bank of America had numerous subsidiaries which were organized under the Consumer Finance Group. Plaintiffs have not demonstrated that any fragmentation was excessive nor that it contributed to any domination of NationsCredit by Bank of America.\nFurthermore, there is no evidence that NationsCredit did not comply with corporate formalities or that NationsCredit was under-capitalized. In fact, it appears that as of 31 December 2000, NationsCredit had a net worth of $953 million dollars, and as of 5 August 2005, NationsCredit had a net worth of approximately $1.3 billion dollars. We hold the trial court did not err by granting summary judgment to Bank of America and we overrule Plaintiffs\u2019 assignments of error grouped under this argument.\nPlaintiffs further argue that the trial court erred by failing to determine Plaintiffs\u2019 Rule 56(f) request outlining the critical discovery Plaintiffs needed to establish that Bank of America was subject to liability. However, Plaintiffs\u2019 Rule 56(f) request was limited to issues regarding punitive damages and did not refer to discovery related to Bank of America\u2019s liability. This argument lacks merit.\nIII.\nPlaintiffs argue the trial court erred by granting summary judgment for Defendants on the ground that the statute of limitations barred the UDTP claims of those Plaintiffs whose loans were originated prior to 10 May 1998. Plaintiffs argue that N.C. Gen. Stat. \u00a7 75-8 extended the statute of limitations in the present case because the alleged violations of the UDTP act were continuous in nature. Specifically, Plaintiffs argue their UDTP claims were continuous in nature because the financing of their SPCI premiums caused Plaintiffs to pay higher costs over the lives of their loans.\nThe statute of limitations applicable to UDTP claims is four years under N.C. Gen. Stat. \u00a7 75-16.2 (2005). However, N.C. Gen. Stat. \u00a7 75-8 (2005) provides that \u201c[w]here the things prohibited in this Chapter are continuous, then in such event, after the first violation of any of the provisions hereof, each week that the violation of such provision shall continue shall be a separate offense.\u201d Plaintiffs argue that Thomas v. Petro-Wash, Inc., 429 F. Supp. 808 (M.D.N.C. 1977), which interpreted N.C.G.S. \u00a7 75-8, is analogous. In Thomas, the plaintiffs owned a car wash and gasoline station and entered into a, lease-leaseback agreement with the defendants in 1968. Id. at 811. The plaintiffs filed a complaint against the defendants on 9 September 1974, alleging the defendants conspired, by the use of the lease-leaseback agreement, \u201cto tie the sale of gasoline and financial assistance to the sale of certain car wash equipment[]\u201d in violation of federal and North Carolina antitrust laws. Id. The defendants moved for summary judgment on the ground that the plaintiffs\u2019 claims were barred by the applicable statutes of limitation. Id.\nIn Thomas, the parties agreed on the general law that a cause of action accrues when a party commits an act that injures another party\u2019s business. Id. However, the defendants argued that the signing of the lease-leaseback agreement in 1968 was the last overt act connecting them with the alleged conspiracy, and therefore the plaintiffs\u2019 claims accrued more than four years before the plaintiffs filed their complaint. Id. The plaintiffs argued the defendants were involved in a continuing conspiracy and that each sale of gasoline under the lease-leaseback agreement constituted an overt act committed pursuant to that conspiracy. Id. at 811-12. The Court agreed with the plaintiffs and concluded that the statute of limitations began to run from the date of each sale of gasoline. Id. at 812. The Court also applied its reasoning to the plaintiffs\u2019 claims for treble damages under the North Carolina antitrust laws. Id. at 813. Because the plaintiffs alleged continuing violations of North Carolina antitrust laws, and because N.C.G.S. \u00a7 75-8 extended the statute of limitations for continuing violations, the plaintiffs\u2019 claims were not time barred. Id.\nThomas is distinguishable from the case before us. Unlike in Thomas, Plaintiffs did not allege any overt acts by Defendants after Defendants sold Plaintiffs SPCI at their loan closings. In fact, it is undisputed that Plaintiffs\u2019 UDTP claims were based on Defendants\u2019 conduct before and during closing and were not based upon Defendants\u2019 conduct after closing.\nPlaintiffs also rely upon U.S. Leasing Corp. v. Everett, Creech, Hancock and Herzig, 88 N.C. App. 418, 363 S.E.2d 665, disc, review denied, 322 N.C. 329, 369 S.E.2d 364 (1988), where the plaintiff filed a breach of contract action against the defendants to recover the balance due under a lease of office equipment. Id. at 420, 363 S.E.2d at 666. Our Court recognized that where an obligation is payable in installments, \u201cthe statute of limitations runs against each installment individually from the time it becomes due[.]\u201d Id. at 426, 363 S.E.2d at 669. Because the lease was payable in monthly installments, the statute of limitations had not run against those payments which had been due in the three years prior to the filing of the complaint. Id.\nU.S. Leasing Corp. is distinguishable because it did not involve a claim for UDTP and did not interpret N.C.G.S. \u00a7 75-8. Moreover, U.S. Leasing Corp. does not apply because it dealt with the unique scenario presented by a breach of an installment contract. In the present case, Plaintiffs\u2019 UDTP claims did not involve an installment contract. Rather, Plaintiffs\u2019 UDTP claims were solely premised on Defendants\u2019 actions before and at the closing of Plaintiffs\u2019 loans. We therefore hold that Plaintiffs\u2019 UDTP claims accrued at the closing of their loans, and N.C.G.S. \u00a7 75-8 did not extend the statute of limitations because any violation of the UDTP Act was not continuous. See Shepard v. Ocwen Federal Bank, FSB, 361 N.C. 137, 139-42, 638 S.E.2d 197, 199-200 (2006) (holding that the plaintiffs\u2019 usury and UDTP claims arising out of the payment of a loan origination fee accrued at the loan closing when such fee was paid and received at closing). We overrule Plaintiffs\u2019 assignments of error grouped under this argument.\nIV.\nPlaintiffs argue the trial court erred by failing to enter money judgments in favor of those class members the trial court held were entitled to damages. Plaintiffs argue that a successful chapter 75 claimant is entitled to pre-judgment interest on the trebled damage award from the date liability attached. Therefore, Plaintiffs contend that \u201cthis Court should specify that post-judgment interest shall be allowed on the entire damages award from the date of entry of the final liability and damages rulings on 10 October 2005.\u201d\nHowever, Plaintiffs cite no authority for this proposition and we therefore deem Plaintiffs\u2019 assignments of error abandoned. See N.C.R. App. P. 28(b)(6). Furthermore, Plaintiffs are partly to blame for any delay in entry of money judgments. The trial court ruled that certain Plaintiffs were entitled to recover compensatory damages as a result of their UDTP claims. The trial court also set forth the measure of damages which would be determined in subsequent proceedings. However, the trial court then certified all of its decisions for immediate interlocutory review pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 54(b). Therefore, the trial court deferred further action in the case until the resolution of any appeals from the decisions certified for immediate appeal. Plaintiffs and Defendants both appealed various decisions of the trial court, thereby delaying the entry of money judgments in the trial court.\nDefendants\u2019 Appeal\nI.\nDefendants argue the trial court erred by holding that Defendants waived their argument that Plaintiffs\u2019 claims were preempted by federal law. Rule 8(c) of the North Carolina Rules of Civil Procedure provides that in a responsive pleading, a party must affirmatively set forth any of the enumerated affirmative defenses \u201cand any other matter constituting an avoidance or affirmative defense.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 8(c) (2005). Settled case law holds that a failure to set forth matters constituting an avoidance or affirmative defense in the pleadings generally results in a waiver of the defense. Robinson v. Powell, 348 N.C. 562, 566, 500 S.E.2d 714, 717 (1998).\nIn ruling that Defendants had waived their federal preemption defense, the trial court noted that the federal preemption issue raised by Defendants was a choice-of-law preemption issue which could be waived if not timely raised, rather than a subject matter jurisdiction preemption issue, which could not be waived. During oral argument in the present case, Defendants conceded that the issue regarding federal preemption was a choice-of-law preemption issue. In support of its ruling that Defendants waived their federal preemption defense, the trial court relied on Collins v. CSX Transportation, 114 N.C. App. 14, 441 S.E.2d 150, disc, review denied, 336 N.C. 603, 447 S.E.2d 388 (1994). However, in Collins, because our Court held that federal preemption was inapplicable to that case, our Court did not reach the issue of whether federal preemption was an affirmative defense that could be waived. See id. at 21, 441 S.E.2d at 154.\nNevertheless, although there is no case' law in North Carolina regarding whether choice-of-law federal preemption is an affirmative defense, we hold that it is. \u201cAlthough we are not bound by federal case law, we may find their analysis and holdings persuasive.\u201d Shepard, 172 N.C. App. at 479, 617 S.E.2d at 64. In Gilchrist v. Jim Slemons Imports, Inc., 803 F.2d 1488, 1496-97 (9th Cir. 1986), the Ninth' Circuit held that choice-of-law federal preemption may be waived if not timely raised. Moreover, G. Gray Wilson, in his treatise on North Carolina Civil Procedure, states that federal preemption is an affirmative defense which must be pled in a responsive pleading. 2 G. Gray Wilson, North Carolina Civil Procedure \u00a7 8-6, at 143-44 (1995). In support of this proposition, G. Gray Wilson relies upon Rehabilitation Institute v. Equitable Life Assur., 131 F.R.D. 99, 100-01 (W.D. Pa. 1990), affd, 937 F.2d 598 (3d Cir. 1991), where the federal district'court for the Western District of Pennsylvania held, and the Third Circuit affirmed, that ERISA preemption was an affirmative defense that could be waived. Accordingly, we hold that the issue regarding federal preemption raised by Defendants was an affirmative defense.\nWe further hold that the trial court did not err by holding that Defendants waived the defense of federal preemption. We recognize that \u201c[u]nder certain circumstances [the North Carolina Supreme] Court has permitted affirmative defenses to be raised for the first time by a motion for summary judgment.\u201d Robinson, 348 N.C. at 566, 500 S.E.2d at 717. In Dickens v. Puryear, 302 N.C. 437, 443, 276 S.E.2d 325, 329 (1981), our Supreme Court held that\nif an affirmative defense required to be raised by a responsive pleading is sought to be raised for the first time in a motion for summary judgment, the motion must ordinarily refer expressly to the affirmative defense relied upon. Only in exceptional circumstances where the party opposing the motion has not been surprised and has had full opportunity to argue and present evidence will movant\u2019s failure expressly to refer to the affirmative defense not be a bar to its consideration on summary judgment.\nIn the present case, not only did Defendants not raise the defense of federal preemption in their answer, Defendants also did not raise federal preemption in their motions for summary judgment. Rather, Defendants raised the defense of federal preemption for the first time in their memorandum in response to Plaintiffs\u2019 motion for partial summary judgment, which was filed 31 January. 2005, after Defendants filed their motions for summary judgment. Plaintiffs did not have the opportunity to argue and present evidence regarding this issue. We therefore hold the trial court did not err by determining that Defendants waived the defense of federal preemption by raising it at what was \u201cvirtually the last minute[.]\u201d We overrule the assignments of error grouped under this argument.\nII.\nDefendants argue the trial court erred by granting summary judgment for Plaintiffs on their UDTP claims involving loans with terms greater than fifteen years. Defendants argue that the trial court erred by determining that NationsCredit committed a UDTP in connection with the sale of SPCI on loans having terms greater than fifteen years because the sale of similar insurance was permitted in association with such loans. Defendants argue that NationsCredit could have sold insurance similar to that sold to Plaintiffs pursuant to Article 58 of Chapter 58. In a related argument, Defendants argue that under Article 58 of Chapter 58 the Insurance Commissioner has approved forms that are nearly identical to the SPCI sold to Plaintiffs with loans greater than fifteen years.\nHowever, the issues that Defendants attempted to raise in opposition to summary judgment are not issues of material fact. It is undisputed that Defendants purported to sell the SPCI to Plaintiffs pursuant to Article 57 of Chapter 58, not Article 58 of that Chapter. It is also undisputed that the SPCI sold to Plaintiffs having loans greater th\u00e1n fifteen years was not approved by the North Carolina Department of Insurance. N.C. Gen. Stat. \u00a7 58-3-150(a) (2005) provides:\nIt is unlawful for any insurance company licensed and admitted to do business in this State to issue, sell, or dispose of any policy, contract, or certificate, or use applications in connection therewith, until the forms of the same have been submitted to and approved by the Commissioner, and copies filed in the Department.\nMoreover, N.C. Gen. Stat. \u00a7 58-57-1 (2005) provides that credit insurance under that Article can only be sold with loans having durations of fifteen years or less:\nAll credit life insurance, all credit accident and health insurance, all credit property insurance, all credit insurance on credit card balances, all family leave credit insurance, and all credit unemployment insurance written in connection with direct loans, consumer credit installment sale contracts of whatever term permitted by G.S. 25A-33, leases, or other credit transactions shall be subject to the provisions of this Article, except credit insurance written in connection with direct loans of more than 15 years\u2019 duration.\nBased upon the undisputed facts, we hold the trial court did not err by determining that, by virtue of the sale of unapproved SPCI, Defendants committed a UDTP.\nDefendants also argue the sale of SPCI on an unapproved form is a regulatory matter and does not constitute a UDTP. Defendants argue that N.C. Gen. Stat. \u00a7 58-2-70 and N.C. Gen. Stat. \u00a7 58-3-100 provide for regulatory penalties for violations of the insurance statutes. In contrast, Defendants argue, N.C. Gen. Stat. \u00a7 58-63-15 defines unfair and deceptive acts in the insurance industry. However, in Country Club of Johnston County, Inc., our Court held that in order to establish a UDTP, a party need not establish a violation under Article 63 of Chapter 58; a party may also establish that an insurer violated N.C. Gen. Stat. \u00a7 75-1.1. Country Club of Johnston Cty., Inc., 150 N.C. App. at 243-45, 563 S.E.2d at 277-78.\nDefendants also cite Home Indemnity Co. v. Hoechst Celanese Corp., 128 N.C. App. 226, 494 S.E.2d 768, disc, review denied, 505 S.E.2d 869 (1998),- arguing that the failure to obtain approval- of the Insurance Commissioner does not void an insurance policy but results in regulatory penalties. However, Home Indemnity Co. is distinguishable. In Home Indemnity Co., our Court did note that nothing in N.C.G.S. \u00a7 58-3-150 declared that unapproved policy provisions were void and further noted that Chapter 58 provided for penalties for violations of its provisions by way of N.C.G.S. \u00a7 58-2-70 and N.C.G.S. \u00a7 58-3-100. Id. at 233, 494 S.E.2d at 773. Our Court also stated that the unapproved policy provision in that case was not contrary to the public policy of North Carolina because it was ultimately approved by the Department of Insurance. Id. at 234, 494 S.E.2d at 773. However, our Court also limited its holding as follows: \u201cIn holding that the unapproved form here is not void, we do not address the situation where an unapproved form is never submitted for approval or is subsequently rejected for use by the Department of Insurance.\u201d Id.\nIn the present case, the SPCI sold to Plaintiffs in association with loans greater than fifteen years was never submitted to the Department of Insurance for approval. Moreover, it could not have been approved because Article 57 of Chapter 58 does not authorize the sale of such credit insurance on loans with durations greater than fifteen years. See N.C.G.S. \u00a7 58-57-1. Therefore, we hold that the sale of the SPCI, which could not have been approved by the Department of Insurance, was void as against the public policy of North Carolina.\nWe also hold that the sale of the SPCI with loans greater than fifteen years was a UDTP as a matter of law. In Drouillard v. Keister Williams Newspaper Services, 108 N.C. App. 169, 423 S.E.2d 324 (1992), disc, review denied, 333 N.C. 344, 427 S.E.2d 617 (1993), we noted that \u201c[t]his Court has repeatedly held that the violation of regulatory statutes which govern business activities may also be a violation of N.C. Gen. Stat. \u00a7 75-1.1 whether or not such activities are listed specifically in the regulatory act as a violation of N.C. Gen. Stat. \u00a7 75-1.1.\u201d Id. at 172-73, 423 S.E.2d at 326-27. In Drouillard, our Court relied in part on Ellis v. Smith-Broadhurst, Inc., 48 N.C. App. 180, 183, 268 S.E.2d 271, 273 (1980), where our Court held that the insurance statutes did not provide exclusive regulation for the insurance industry and that N.C.G.S. \u00a7 75-1.1 was applicable. Drouillard, 108 N.C. App. at 172-73, 423 S.E.2d at 326. In Drouillard, we then held that N.C.G.S. \u00a7 75-1.1 was applicable to violations of the Trade Secrets Protection Act despite the fact that this Act was not one of the regulatory statutes specifically listed in Chapter 66. Id. at 172-73, 423 S.E.2d at 326-27.\nIn the present case, we hold that the sale of unapproved SPCI to Plaintiffs in association with loans having terms greater than fifteen years was an \u201cunfair or deceptive act[] or practice[] in or affecting commerce^]\u201d in violation of N.C.G.S. \u00a7 75-1.1(a). As established by Drouillard and Ellis, it is immaterial that the insurance statutes are regulatory statutes.\nDefendants also argue that the failure to obtain regulatory approval for the SPCI did not proximately cause any damage to Plaintiffs. Defendants argue that because Plaintiffs retained the insurance product, the sale of SPCI did not cause them to suffer any damages. However, this argument wrongly supposes that the SPCI sold to Plaintiffs had some value. Because we hold, in section V of this opinion pertaining to Defendants\u2019 appeal, that the SPCI sold to Plaintiffs had no value, we reject this argument. Therefore, the sale of SPCI to Plaintiffs with loans greater than fifteen years proximately caused Plaintiffs to suffer damages. We therefore affirm the trial court on this issue.\nIII.\nDefendants argue the trial court erred by granting summary judgment to Plaintiffs having loans greater than fifteen years on their good faith and fair dealing claims. Relying upon Polygenex Int\u2019l, Inc. v. Polyzen, Inc., 133 N.C. App. 245, 515 S.E.2d 457 (1999), Defendants argue \u201c[t]he duty of good faith is not an independent duty and a claim for its breach must allege a breach of the contract from which it arises.\u201d Defendants contend that because Plaintiffs did not allege breach of contract, the trial court erred by granting summary judgment for Plaintiffs with loans greater than fifteen years on their good faith and fair dealing claims.\nHowever, Polygenex Int\u2019l, Inc. does not stand for the proposition that a party alleging breach of the duty of good faith and fair dealing must allege a breach of contract. Rather, in Polygenex Int\u2019l, Inc., the plaintiff filed an action against the defendants for breach of contract, tortious interference with contract, trademark infringement, and unfair and deceptive trade practices. Id. at 246, 515 S.E.2d at 459. The defendants moved to dismiss the complaint and also moved for costs and attorneys\u2019 fees under Rule 11 of the Rules of Civil Procedure. Id. at 247, 515 S.E.2d at 459. The plaintiff voluntarily dismissed the action without prejudice. Id. The trial court then entered an order finding that the plaintiff\u2019s complaint was \u201cnot warranted in law, was not well-grounded in fact, and was filed for an improper purpose.\u201d Id. The trial court ordered the plaintiff and an officer/director of the plaintiff to pay the defendants\u2019 attorneys\u2019 fees and costs. Id.\nOn appeal, our Court simply addressed issues related to the sanctioning of the plaintiff and its officer/director. Id. at 247-55, 515 S.E.2d at 459-64. In support of their argument that the plaintiff\u2019s breach of contract claim was facially implausible, the defendants in Polygenex Int\u2019l, Inc. argued that \u201c \u2018[a]bsent a breach of actual provisions of the Separation Agreement, . . . breach of the implied covenant of good faith does not state a proper cause of action.\u2019 \u201d Id. at 251, 515 S.E.2d at 461. Our Court did not so hold. Our Court simply held that the trial court\u2019s findings of fact were supported by sufficient evidence and that the findings supported the trial court\u2019s conclusions. Id. at 252, 515 S.E.2d at 462. Our Court held that the plaintiff did not state a claim for breach of contract. Id. It appears there was not even a claim for breach of the duty of good faith and fair dealing at issue in that case. Therefore, our Court did not hold that a party must allege breach of contract to state a claim for breach of the duty of good faith and fair dealing.\nOur Court has recognized a cause of action for breach of the duty of good faith and fair dealing in a context similar to the one at issue in the present case. In Gant v. NCNB, 94 N.C. App. 198, 379 S.E.2d 865, disc, review denied, 325 N.C. 706, 388 S.E.2d 453 (1989), the trial court dismissed the plaintiff\u2019s complaint which had alleged, inter alia, a claim for breach of the duty of good faith. Id. at 199-200, 379 S.E.2d at 867. The plaintiff alleged that the defendant failed to inform her of the financial condition of the company whose loans the plaintiff guaranteed. Id. at 199, 379 S.E.2d at 867. Specifically, the plaintiff alleged that the defendant knew the plaintiff was unaware of the company\u2019s financial condition and that the plaintiff was relying upon the defendant\u2019s good faith and expertise. Id. at 200, 379 S.E.2d at 867. The plaintiff also alleged the defendant knew that the company, whose loans the plaintiff guaranteed, was insolvent. Id.\n\u00d3ur Court recognized that although there is no fiduciary relationship between a creditor and a guarantor, a creditor may have a duty to disclose information about the principal debtor under some circumstances. Id. at 199\u2019, 379 S.E.2d at 867. Our Court stated:\n\u201c \u2018If the creditor knows, or has good grounds for believing that the surety [or guarantor] is being deceived or misled, or that he is induced to enter into the contract in ignorance of facts materially increasing the risks, of which he has knowledge, and he has an opportunity, before accepting his undertaking, to inform him of such facts, good and fair dealing demand that he should make such disclosure to him; and if he \u00bfccepts the contract without doing so, the surety [or guarantor] may afterwards avoid it.\u2019 \u201d\nId. at 199-200, 379 S.E.2d at 867 (quoting Trust Co. v. Akelaitis, 25 \u00d1.C. App. 522, 526, 214 S.E.2d 281, 284 (1975) (citation omitted)). Our Court held that the plaintiff \u201calleged sufficient facts to state a claim against [the] defendant, whether the cause of action is ultimately determined to be one for negligence or \u2018breach of duty of good faith,\u2019 as [the] plaintiff has labeled her claims.\u201d Id. at 200, 379 S.E.2d at 867.\nIn the present case, as in Gant, NationsCredit had a duty to act in good faith and deal fairly with its borrowers to whom it also sold insurance. The undisputed facts demonstrate that NationsCredit sold insurance products that were not approved by the Department of Insurance to Plaintiffs with loans greater than fifteen years. In fact, the insurance sold to Plaintiffs with loans greater than fifteen years could not have been approved by the Department of Insurance. See N.C.G.S. \u00a7 58-57-1. We hold that by selling an unlawful insurance product to Plaintiffs with loans greater than fifteen years, NationsCredit breached its duty of good faith and fair dealing as a matter of law. Therefore, the trial court did not err by granting summary judgment for certain Plaintiffs on these claims.\nIV.\nDefendants argue the trial court erred by determining that Plaintiffs with loans greater than fifteen years were entitled to a jury trial regarding punitive damages on their claims for breach of the duty of good faith and fair dealing. Pursuant to N.C. Gen. Stat. \u00a7 ID-1 (2005), punitive damages are designed \u201cto punish a defendant for egregiously wrongful acts and to deter the defendant and others from committing similar wrongful acts.\u201d Pursuant to N.C. Gen. Stat. \u00a7 1D-I5(a) (2005), punitive damages may only be awarded against a defendant who is liable for compensatory damages if the claimant also proves fraud, malice or willful or wanton conduct. \u201cWillful or wanton conduct\u201d is defined as \u201cthe conscious and intentional disregard of and indifference to the rights and safety of others, which the defendant knows or should know is reasonably likely to result in injury, damage, or other harm.\u201d N.C. Gen. Stat. \u00a7 lD-5(7) (2005).\nGenerally, a party may not recover punitive damages for breach of contract, except for breach of contract to marry. Newton v. Insurance Co., 291 N.C. 105, 111, 229 S.E.2d 297, 301 (1976). \u201cNevertheless, where there is an identifiable tort even though the tort also constitutes, or accompanies, a breach of contract, the tort itself may give rise to a claim for punitive damages.\u201d Id. \u201cEven where sufficient facts are alleged to make out an identifiable tort, however, the tortious conduct must be accompanied by or partake of some element of aggravation before punitive damages will be allowed.\u201d Id. at 112, 229 S.E.2dat301.\nIn the present case, Defendants argue the trial court erred because Plaintiffs failed to prove an independent tort and failed to submit sufficient evidence that NationsCredit acted willfully or wantonly. However, in Dailey v. Integon Ins. Corp., 57 N.C. App. 346, 291 S.E.2d 331 (1982), the plaintiff alleged that the defendant insurance company refused to settle his fire claim without justification, and the plaintiff sought compensatory, special, and punitive damages. Id. at 347, 291 S.E.2d at 332. The plaintiff alleged the defendant refused to settle the plaintiffs fire claim in good faith and refused to acknowledge the plaintiffs damage estimates. Id. at 348, 291 S.E.2d at 332. The plaintiff also alleged that the defendant\u2019s agent offered money to local individuals in an attempt to discredit the plaintiffs claim and credibility. Id. The plaintiff alleged that these actions breached the covenant of good faith and fair dealing. Id. The plaintiff also alleged these actions were willful, oppressive and malicious, and were done to pressure the plaintiff into a settlement. Id. at 348-49, 291 S.E.2d at 332-33. The plaintiff further alleged the defendant\u2019s misuse of power was outrageous and was in reckless and wanton disregard of the plaintiff\u2019s rights. Id. at 349, 291 S.E.2d at 333.\nThe defendant moved to dismiss the plaintiff\u2019s claim and the trial court dismissed the plaintiff\u2019s claims for special and punitive damages. Id. at 347, 291 S.E.2d at 332. Our Court reversed, however, holding that the plaintiff \u201csufficiently alleged a tortious act accompanied by \u2018some element of aggravation\u2019 to withstand [the] defendant\u2019s motion.\u201d Id. at 350, 291 S.E.2d at 333.\nSimilarly, in the present case, Plaintiffs with loans greater than fifteen years have proven willful and wanton tortious activity by NationsCredit sufficient to warrant submission of their class claim for punitive damages to a jury. In the present case, the trial court relied on the following facts in holding that Plaintiffs had alleged facts sufficient for a jury determination on punitive damages:\n[1.] NationsCredit was a wholly owned subsidiary of a sophisticated nationwide bank;\n[2.] NationsCredit had a legal department available to give advice;\n[3.] There is no affidavit or deposition testimony from anyone working for or with NationsCredit that [NationsCredit] ever considered whether the sale of this SPCI was legal or conducted an investigation into the legality of its insurance sales practices on these kinds of loans;\n[4.] [NationsCredit] has offered no direct evidence that it believed or had a rational basis for believing it was acting legally when it illegally sold these insurance policies over a two year period from May 1998 through June 2000;\n[5.] The lawfulness vs. unlawfulness issue is not a complicated factual question; it is a matter .of reading the applicable statutes. Anyone reading the statute, particularly someone in the insurance field, would at the least recognize the problem with selling this insurance, and there is no evidence before the Court that the arguments now made by defense counsel in court in defense of selling this insurance were considered and evaluated before making the decision to sell the insurance;\n[6.] The sale and financing of SPCI on mortgage loans has been controversial for a number of years and is highly regulated by the states;\n[7.] SPCI is- expensive insurance that meets the needs of very few if any customers;\n[8.] NationsCredit never investigated offering other kinds of insurance because profits would have been lower; and\n[9.] The primary motivation behind the sale of SPCI was the large profits available.\nThe trial court held that this evidence would allow a jury to infer that NationsCredit\nfailed to investigate or take any steps to determine whether the sale of this controversial and highly regulated insurance was legal and decided to sell the insurance solely based on the high profits available and without regard to the financial needs or legal rights of its customers, and to the detriment of their property rights in the homes securing these mortgages.\nThe trial court recognized that there were other facts which could allow inferences to the contrary, but determined that the resolution of the controversy was appropriate for a jury.\nWe hold that Plaintiffs proved sufficient facts establishing willful or wanton tortious activity by NationsCredit. Plaintiffs proved facts sufficient to show that the actions of NationsCredit were in \u201cconscious and intentional disregard of and indifference to the rights\u201d of Plaintiffs, and NationsCredit knew or should have known that by selling unlawful insurance, its actions were \u201creasonably likely to result in injury, damage, or other harm.\u201d See N.C.G.S. \u00a7 lD-5(7).\nDefendants also argue the trial court erred by certifying a class because there were no common questions of law or fact for Plaintiffs\u2019 class claim for punitive damages. We review a trial court\u2019s decision to certify a class for an abuse of discretion. Nobles v. First Carolina Communications, 108 N.C. App. 127, 132, 423 S.E.2d 312, 315 (1992), disc, review denied, 333 N.C. 463, 427 S.E.2d 623 (1993).\nIn Faulkenberry v. Teachers\u2019 and State Employees\u2019 Ret. Sys., 345 N.C. 683, 483 S.E.2d 422 (1997), the defendants argued that class certification was inappropriate because members of the potential class would receive different recoveries. Id. at 698, 483 S.E.2d at 431-32. Our Supreme Court held that these were collateral issues, and that the predominate issue was \u201chow much the parties\u2019 retirement benefits were reduced by an unconstitutional change in the law.\u201d Id. at 698, 483 S.E.2d at 432. Our Supreme Court upheld the trial court\u2019s certification of the class. Id. at 698-99, 483 S.E.2d at 432.\nLikewise, in the present case, the fact that Plaintiffs might be entitled to varying amounts of damages did not preclude class certification. In the present case, the trial court made findings of fact regarding damages:\n13. ... The fact that class members, if Plaintiffs prevail, will be entitled to varied amounts of damages does not render class certification inappropriate. Damages will be simpler to deal with in this case than in some, since it will be clear from review of the loan papers how much the insurance coverage at issue cost each class member and whether the financing of the insurance premium increased other fees or costs.\n14. ... The questions of fact and law at issue are the same for all types of SPCI. Only the amount of damages will vary and that variance is insufficient in the Court\u2019s judgment and evaluation to preclude class certification.\nWe hold the trial court did not abuse its discretion by certifying a class.\nV.\nDefendants argue the trial court erred by failing to reduce the amount of compensatory damages by the value of the SPCI retained by Plaintiffs. N.C.G.S. \u00a7 75-16 provides for damages for a violation of the UDTP Act:\nIf any person shall be injured or the business of any person, firm or corporation shall be broken up, destroyed or injured by reason of any act or thing done by any other person, firm or corporation in violation of the provisions of this Chapter, such person, firm or corporation so injured shall have a right of action on account of such injury done, and if damages are assessed in such case judgment shall be rendered in favor of the plaintiff and against the defendant for treble the amount fixed by the verdict.\n\u201cUnfair and deceptive trade practices and unfair competition claims are neither wholly tortious nor wholly contractual in nature and the measure of damages is broader than common law actions.\u201d Sunbelt Rentals, Inc. v. Head & Engquist Equip., L.L.C., 174 N.C. App. 49, 61, 620 S.E.2d 222, 231 (2005). \u201cThe measure of damages used should further the purpose of awarding damages, which is \u2018to restore the victim to his original condition, to give back to him that which was lost as far as it may be done by compensation in money.\u2019 \u201d Bernard v. Central Carolina Truck Sales, 68 N.C. App. 228, 233, 314 S.E.2d 582, 585 (quoting Phillips v. Chesson, 231 N.C. 566, 571, 58 S.E.2d 343, 347 (1950)), disc, review denied, 311 N.C. 751, 321 S.E.2d 126 (1984).\nDefendants argue that the SPCI sold to Plaintiffs had value and that its value must be deducted from Plaintiffs\u2019 damages prior to trebling. In support of this argument, Defendants rely upon Morris v. Bailey, 86 N.C. App. 378, 386, 358 S.E.2d 120, 125 (1987), where our Court recognized that \u201c[i]f a plaintiff in an action under Section 75-1.1 involving the sale of a good retains the good, the difference in fair market value is an appropriate measure of damages.\u201d However, the principle enunciated in Morris is inapplicable because Plaintiffs in the present case did not \u201cretain[] [a] good.\u201d Rather, Plaintiffs retained an unlawfully sold insurance product which had no v\u00e1lue.\nDefendants also cite Pierce v. Reichard, 163 N.C. App. 294, 593 S.E.2d 787 (2004) and Lumsden v. Lawing, 107 N.C. App. 493, 421 S.E.2d 594 (1992). However, in these cases, whatever was retained by the complaining party had value which, when retained by the complaining party, did reduce the amount of damages owed to the complaining party. See Pierce, 163 N.C. App. at 298, 593 S.E.2d at 790 (where the defendant\u2019s damages were reduced by the fair market rental value of the real property); Lumsden, 107 N.C. App. at 504, 421 S.E.2d at 601 (where the plaintiffs\u2019 damages were reduced by the reasonable rental value of the real property). Unlike the cases cited by Defendants, the SPCI in the present case had no value because it was an unlawfully sold insurance product. Defendants also cite Taylor v. Triangle Porsche-Audi, Inc., 27 N.C. App. 711, 220 S.E.2d 806 (1975), disc, review denied, 289 N.C. 619, 223 S.E.2d 396 (1976). However, Taylor is inapposite because the plaintiff in that case sought to. rescind the contract and recover the sales price rather than retain the vehicle and recover the difference in value. Id. at 716-17, 220 S.E.2d at 811.\nBecause we hold that the sale of SPCI with loans greater than fifteen years was void as against public policy, we look to case law regarding void contracts in holding that the SPCI sold to Plaintiffs with loans greater than fifteen years had no value. Our Supreme Court has stated: \u201c[I]t is generally held that if there can be no recovery on an express contract because of its repugnance to public policy, there' can be no recovery on quantum meruit.\" Thompson v. Thompson, 313 N.C. 313, 314-15, 328 S.E.2d 288, 290 (1985) (citing Builders Supply v. Midyette, 274 N.C. 264, 162 S'.E.2d 507 (1968); Insulation Co. v. Davidson County, 243 N.C. 252, 90 S.E.2d 496 (1955)). \u201cStated differently, the law will not allow one party to benefit directly or indirectly from a contract void as against public policy.\u201d Davis v. Taylor, 81 N.C. App. 42, 50, 344 S.E.2d 19, 24, disc, review denied, 318 N.C. 414, 349 S.E.2d 593 (1986). In the present case, we hold that the SPCI sold to Plaintiffs with loans greater than fifteen years in length did not have any value because the contract was void as against public policy. Therefore, Defendants were not entitled to reduce the amount of damages determined by the trial court by any amount attributable to the unlawful insurance product. Accordingly, to make Plaintiffs whole, the trial court properly held that the measure of damages should include the premium, interest, fees, and points associated with the purchase and financing of the SPCI.\nDefendants also argue that pursuant to Blount v. Fraternal Assn., 163 N.C. 167, 79 S.E. 299 (1913), the lack of the Commissioner of Insurance\u2019s approval does not affect the validity of the insurance. However, our Court analyzed Blount in Home Indemnity Co., discussed above in section II of Defendants\u2019 Appeal. In Home Indemnity Co., our Court held that\nthe dicta in Blount is persuasive. Blount interpreted a predecessor statute to G.S. 58-3-150. While the court in Blount did rule on a purely evidentiary basis, the court also addressed the issue of unapproved policy language. The court determined that even if the Insurance Commissioner had not approved the policy, \u201cwe would not give our assent to the position of the plaintiff that this would avoid the effect of the provision stamped on the certificate, leaving other parts of the certificate in force.\u201d [Blount, 163 N.C.] at 170. The court further noted that \u201c[t]he statute does not purport to deal with the validity of the contract of insurance, but with the insurance company.\u201d Id.\nHome Indemnity Go., 128 N.C. App. at 233-34, 494 S.E.2d at 773. In Home Indemnity Co., our Court also held that the policy provision at issue in that case was not contrary to public policy and should be enforced as written. Id. at 234, 494 S.E.2d at 773. However, as we discussed earlier, our Court limited its holding as follows: \u201cIn holding that the unapproved form here is not void, we do not address the situation where an unapproved form is never submitted for approval or is subsequently rejected for use by the Department of Insurance.\u201d Id. In the present case, the SPCI sold to Plaintiffs in association with loans greater than fifteen years was never submitted to the Department of Insurance for approval, nor could it have been, as we determined earlier. Therefore, the sale of such insurance was void as against public policy.\nDefendants further argue the trial court erred by failing to reduce, prior to trebling, the amount of compensatory damages by the amount of any refund received by Plaintiffs who canceled their coverage. Defendants rely upon Taylor v. Volvo North America Corp., 339 N.C. 238, 451 S.E.2d 618 (1994), where the plaintiff leased a vehicle manufactured by the defendant and filed an action against the defendant alleging the vehicle failed to conform to an express warranty in violation of the New Motor Vehicles Warranties Act (the Warranties Act). Id. at 241, 451 S.E.2d at 619. The trial court found that the defendant breached an express warranty and awarded the plaintiff damages in the amount of $4,511.95 plus interest, consisting of the lease payments, the security deposit, and repair costs. Id. at 243, 451 S.E.2dat 621. The trial court also found that the defendant had unreasonably refused to comply with the Warranties Act and, therefore, trebled the damages. Id. The trial court then allowed the defendant to offset $5,429.00, which represented a reasonable allowance for the use of the vehicle. Id.\nOur Supreme Court held that the reasonable allowance for the use of a vehicle should have been deducted from the plaintiffs damages before those damages were trebled. Id. at 256, 451 S.E.2d at 628. However, our Supreme Court based its decision, on the interplay between the \u201cRemedies\u201d and \u201cReplacement or refund\u201d sections of the Warranties Act. Id. at 256-59, 451 S.E.2d at 628-30. Importantly, the Court limited its holding by stating that the Warranties Act was not comparable with Chapter 75 on the issue of offsetting: \u201cWe believe the two statutes are not comparable on this issue. The [Warranties] Act before us specifically provides for the damages, i.e. refunds, to a consumer to be reduced by a reasonable allowance for the vehicle\u2019s use. Chapter 75 has no such offsetting provisions.\u201d Id. at 260, 451 S.E.2d at 630. The Court in Taylor also distinguished Seafare Corp. v. Trenor Corp., 88 N.C. App. 404, 363 S.E.2d 643, disc, review denied, 322 N.C. 113, 367 S.E.2d 917 (1988), which dealt with offsetting in the context of Chapter 75. Id. at 260, 451 S.E.2d at 630. We find Seafare Corp. persuasive in the present case.\nIn Seafare Corp., the plaintiff filed an action against the defendants alleging the defendants engaged in unfair and deceptive trade practices in violation of N.C.G.S. \u00a7 75-1.1. Seafare Corp., 88 N.C. App. at 406, 363 S.E.2d at 647. The jury returned a verdict awarding the plaintiff $400,000.00 in damages. Id. at 408, 363 S.E.2d at 648. In its judgment, the trial court deducted $137,000.00 which had been paid to the plaintiff by two of the original defendants in return for dismissals. Id. The trial court then trebled the reduced amount pursuant to N.C.G.S. \u00a7 75-16. Id.\nOn appeal, our Court held that the trial court erred by deducting the $137,000.00 before trebling the jury\u2019s award of damages, rather than after. Id. at 417, 363 S.E.2d at 653. Our Court recognized that N.C. Gen. Stat. \u00a7 75-16 \u201cis both remedial and punitive in nature.\u201d Id. We also recognized that \u201c[t]wo purposes of the statutory provision for treble damages are to facilitate bringing actions where money damages are limited and to increase the incentive for reaching a settlement.\u201d Id. Therefore, our Court relied on the reasoning of a Texas decision, which \u201cbased its holding on the punitive and remedial purposes of the statute and also on the ground that deducting the amount before trebling the award would discourage settlements.\u201d Seafare Corp., 88 N.C. App. at 417, 363 S.E.2d at 653. Our Court held that the trial court \u201cerred by deducting the $137,000[.00] before rather than after trebling the jury\u2019s award of damages[,]\u201d and the trial court remanded for correction of the judgment. Id.\nLike Seafare Corp., the present case involves trebling of damages under Chapter 75. Therefore, we find the reasoning of Seafare Corp., rather than Taylor, to be persuasive. As in Seafare Corp., the trial court\u2019s decision in the present case to deduct any refunds paid to Plaintiffs after trebling the entire amount of damages facilitates the remedial and punitive purposes of Chapter 75, and also encourages settlement. We therefore affirm the trial court on this issue.\nPlaintiffs and Defendants failed to set forth argument pertaining to their remaining assignments of error, and we therefore deem them abandoned. See N.C.R. App. P. 28(b)(6).\nAffirmed.\nJudges BRYANT and STEELMAN concur.\n. The trial court dismissed the individual claims of Joyce M. Smith with prejudice and removed her as a class representative on 16 June 2005.",
        "type": "majority",
        "author": "McGEE, Judge."
      }
    ],
    "attorneys": [
      "Jones Martin Parris & Tessener Law Offices, P.L.L.C., by John Alan Jones and G. Christopher Olson, for Plaintiffs.",
      "Kennedy Covington Lobdell & Hickman, L.L.P., by John H. Culver III and Amy Pritchard Williams, for Defendants."
    ],
    "corrections": "",
    "head_matter": "JUANITA RICHARDSON and ROBERT and GLORIA GOWER, on behalf of themselves and all others similarly situated, Plaintiffs v. BANK OF AMERICA, N.A. and NATIONSCREDIT FINANCIAL SERVICES CORPORATION, Defendants\nNo. COA06-211\n(Filed 17 April 2007)\n1. Unfair Trade Practices\u2014 single premium credit insurance \u2014 loans of fifteen years or less\nThe trial court did not err by granting summary judgment for defendants on unfair and deceptive trade practices for claims involving single premium credit insurance for loans of 15 years or less. The sale of these loans was explicitly allowed by statute and it was undisputed that the Department of Insurance approved them. N.C.G.S. \u00a7 58-57-35(b).\n2. Corporations\u2014 sale of credit insurance by subsidiary\u2014 overlapping officers \u2014 not sufficient for parent company liability\nThe trial court did not err by granting summary judgment for defendant Bank of America on claims arising from the sale of single premium credit insurance by its subsidiary, NationsCredit. It is undisputed that plaintiffs obtained their loans from Nations-Credit; the mere fact that there were overlapping officers is insufficient to impose direct liability on Bank of America for NationsCredit\u2019s actions.\n3. Corporations\u2014 sale of credit insurance by subsidiary\u2014 officer in both companies controlling subsidiary \u2014 not sufficient for parent company liability\nThe trial court did not err by granting summary judgment for defendant Bank of America on claims arising from the sale of single premium credit insurance by its subsidiary, NationsCredit. Although an officer of both companies controlled the day-to-day activities of NationsCredit and testified that his separate titles were of no import, plaintiffs did not show that any officer or director operated merely on behalf of Bank of America when operating NationsCredit.\n4. Corporations\u2014 piercing corporate veil \u2014 numerous subsidiaries \u2014 not sufficient\nPlaintiffs did not show excessive fragmentation of Bank of America\u2019s subsidiaries when attempting to pierce the corporate veil because they produced no evidence other than that Bank of America had numerous subsidiaries. Plaintiffs did not demonstrate that any fragmentation was excessive or that it contributed to any domination of the subsidiary.\n5. Corporations\u2014 parent corporation liability \u2014 compliance with corporate form\u00e1lities\nThere was no evidence that NationsCredit did not comply with corporate formalities or that it was undercapitalized.\n6. Unfair Trade Practices\u2014 statute of limitations \u2014 credit insurance \u2014 not a continuous violation\nThe trial court did not err by granting summary judgment for defendant on unfair and deceptive trade practice claims based on the statute of limitations in an action arising from defendant\u2019s sale of single premium credit insurance and the financing of the premium. These claims did not involve an installment contract, and were premised solely on defendant\u2019s actions before and at the closing, and accrued at the time of closing of plaintiffs\u2019 loans. Any violation of the UDTP Act was not continuous and N.C.G.S. \u00a7 75-8 did not extend the statute of limitations. -\n7. Appeal and Error; Judgments\u2014 failure to cite authority\u2014 argument abandoned \u2014 prejudment interest \u2014 effect of appeal\nPlaintiffs abandoned their argument concerning interest on an award by not citing authority for their proposition. Moreover, they were partly to blame for any delay in the entry of money judgments because the trial judge, after ruling that some plaintiffs were entitled to damages, certified all of its decisions for immediate review, delayed further action until the resolution of appeals, and plaintiffs appealed some of the court\u2019s decisions.\n8. Pleadings\u2014 affirmative defense \u2014 raised only in summary judgment memo \u2014 waiver\nChoice-of-law federal preemption is an affirmative defense. Defendants here waived that defense by not raising it in their answer or in their motions for summary judgment, but only in their memorandum in response to plaintiffs\u2019 motion for partial summary judgment. Plaintiffs did not have the opportunity to argue and present evidence on this issue.\n9.Insurance\u2014 single premium credit insurance \u2014 unfair trade practice \u2014 summary judgment\nThe trial court did not err by granting summary judgment for plaintiffs and determining, on the undisputed facts, that defendants committed an unfair and deceptive trade practice in the sale of unapproved single premium credit insurance. It is undisputed that defendants purported to sell the policies pursuant to Article 57 rather than Article 58 of Chapter 58, and that the policies sold to plaintiffs having loans greater than 15 years were not approved by the Department of Insurance. Wheth\u00e9r similar insurance could have been sold under a different section of the statutes is not an issue of material fact.\n10. Unfair Trade Practices\u2014 single premium credit insurance \u2014 governing statutes regulatory \u2014 product retained, but valueless\nThe sale of single premium credit insurance on a form not approved by the Department of Insurance in association with loans having terms greater than 15 years was an unfair or deceptive act. It is immaterial that the insurance statutes are regulatory. The argument that there were no damages because plaintiffs retained the insurance product wrongly supposes that the product had some value.\n11. Insurance\u2014 single premium credit insurance \u2014 good faith and fair dealing \u2014 allegation that contract breached \u2014 not required\nDefendant NationsCredit breached its duty of good faith and fair dealing as a matter of law in the sale of unlawful single premium credit insurance policies associated with loans of more than 15 years.\n12. Damages and Remedies\u2014 punitive damages \u2014 willful or wanton activity \u2014 sale of single premium credit insurance\nPlaintiffs proved sufficient facts establishing willful or wanton tortious activity for a jury trial on punitive damages on its claim against NationsCredit for the sale of single premium credit insurance.\n13. Class Actions\u2014 single premium credit insurance \u2014 varying amounts of damages \u2014 certification\nThe trial court did not abuse its discretion by certifying a class in an action involving single premium credit insurance. The fact that plaintiffs might be entitled to varying amounts of damages did not preclude class certification.\n14. Unfair Trade Practices\u2014 single premium credit insurance \u2014 calculation of damages \u2014 retained insurance without value\nThe trial court properly held that the measure of damages in an unfair and deceptive trade practices claim arising from the sale of single premium credit insurance for loans less than 15 years should include the premium, interest, fees, and points associated with the purchase and financing of the insurance. Defendants were not entitled to reduce the damages by the amount attributable to the insurance because that insurance was void as against public policy and did not have any value.\n15. Unfair Trade Practices\u2014 single premium credit insurance \u2014 calculation of damages \u2014 refunds\nThe trial court did not err in an unfair and deceptive trade practices claim by first trebling damages and then deducting refunds for cancelled insurance that was void as against public policy. The court\u2019s decision facilitates the remedial and punitive purpose of Chapter 75 and encourages settlement.\nAppeal by Plaintiffs and Defendants from orders entered 10 March 2005, 19 April 2005, 23 June 2005, 27 July 2005, and 12 October 2005; appeal by Plaintiffs from orders entered 15 April 2003, 8 October 2004, 16 November 2004, 10 March 2005, 19 April 2005, and 16 June 2005; and appeal by Defendants from orders entered 14 June 2004, 19 April 2005, and 16 June 2005 by Judge Catherine C. Eagles in Superior Court, Durham County. Heard in the Court of Appeals 15 November 2006.\nJones Martin Parris & Tessener Law Offices, P.L.L.C., by John Alan Jones and G. Christopher Olson, for Plaintiffs.\nKennedy Covington Lobdell & Hickman, L.L.P., by John H. Culver III and Amy Pritchard Williams, for Defendants."
  },
  "file_name": "0531-01",
  "first_page_order": 563,
  "last_page_order": 598
}
