{ "id": 4181832, "name": "JAMES ERIC POOLE and WILLIAM SETH MARLOWE, Plaintiffs v. BAHAMAS SALES ASSOCIATE, LLC, GINN FINANCIAL SERVICES, LLC, THE GINN COMPANIES, LLC, GINN DEVELOPMENT COMPANY, LLC, GINN DEVELOPMENT INTERNATIONAL, LLC, GINN REAL ESTATE COMPANY, LLC, GINN-LA WEST END, LIMITED CORP., GINN-LA GLADYS FORK LTD., LLLP, LA-GLADYS FORK GP, LLC, GINN-LA LAUREL CREEK LTD., LLLP, GINN-LAUREL CREEK GP, LLC, GINN CONSTRUCTION COMPANY, LLC, GINN LAURELMOR CONDOMINIUMS, LLC, THE CLUB AT LAURELMOR, LLC, GINN-LA CS BORROWER, LLC, GINN-LA CS HOLDING COMPANY, LLC, Defendants", "name_abbreviation": "Poole v. Bahamas Sales Associate, LLC", "decision_date": "2011-01-04", "docket_number": "No. COA10-394", "first_page": "136", "last_page": "143", "citations": [ { "type": "official", "cite": "209 N.C. App. 136" } ], "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": "23 L. Ed. 2d 745", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1969, "opinion_index": 0 }, { "cite": "395 U.S. 959", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771907, 1771881, 1772210, 1772180, 1772212, 1772117 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/us/395/0959-03", "/us/395/0959-01", "/us/395/0959-05", "/us/395/0959-04", "/us/395/0959-02", "/us/395/0959-06" ] }, { "cite": "407 F.2d 1165", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 2112411 ], "pin_cites": [ { "page": "1167" } ], "opinion_index": 0, "case_paths": [ "/f2d/407/1165-01" ] }, { "cite": "547 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2001, "pin_cites": [ { "page": "579" } ], "opinion_index": 0 }, { "cite": "353 N.C. 370", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 135874, 135726, 135919, 135793, 135581 ], "year": 2001, "opinion_index": 0, "case_paths": [ "/nc/353/0370-03", "/nc/353/0370-01", "/nc/353/0370-04", "/nc/353/0370-05", "/nc/353/0370-02" ] }, { "cite": "541 S.E.2d 157", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 2000, "pin_cites": [ { "page": "164" }, { "page": "164" }, { "parenthetical": "alteration in original" }, { "page": "165" }, { "page": "164" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 569", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9442338 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "578-79" }, { "page": "581" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0569-01" ] }, { "cite": "316 S.E.2d 59", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "62" } ], "opinion_index": 0 }, { "cite": "311 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4682052 ], "year": 1984, "pin_cites": [ { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nc/311/0230-01" ] }, { "cite": "206 S.E.2d 178", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1974, "pin_cites": [ { "page": "182" }, { "page": "189" } ], "opinion_index": 0 }, { "cite": "285 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565058 ], "year": 1974, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/nc/285/0434-01" ] }, { "cite": "162 S.E.2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "483", "parenthetical": "citing Childers I, 259 N.C. at 238, 130 S.E.2d at 324" } ], "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "259", "parenthetical": "citing Childers I, 259 N.C. at 238, 130 S.E.2d at 324" }, { "page": "259" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "130 S.E.2d 323", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 8, "year": 1963, "pin_cites": [ { "page": "324", "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" }, { "page": "323" }, { "page": "324", "parenthetical": "emphasis added" }, { "parenthetical": "emphasis added" }, { "page": "324" }, { "page": "324" } ], "opinion_index": 0 }, { "cite": "259 N.C. 237", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559831 ], "weight": 3, "year": 1963, "pin_cites": [ { "page": "238", "parenthetical": "emphasis added" }, { "page": "238" }, { "page": "238" } ], "opinion_index": 0, "case_paths": [ "/nc/259/0237-01" ] }, { "cite": "250 S.E.2d 271", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "273" }, { "page": "371" }, { "page": "274", "parenthetical": "\"[The General Assembly's intent in enacting the statute was] to protect vendees from oppression by vendors and mortgagors from oppression by mortgagees.\"" } ], "opinion_index": 0 }, { "cite": "296 N.C. 366", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566139 ], "year": 1979, "pin_cites": [ { "page": "370" } ], "opinion_index": 0, "case_paths": [ "/nc/296/0366-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.38", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 2009, "opinion_index": 0 }, { "cite": "355 S.E.2d 840", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "276 S.E.2d 325", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "332" } ], "opinion_index": 0 }, { "cite": "302 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567370 ], "year": 1981, "pin_cites": [ { "page": "448" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0437-01" ] }, { "cite": "254 S.E.2d 611", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1979, "pin_cites": [ { "page": "615" }, { "page": "615" }, { "page": "671" } ], "opinion_index": 0 }, { "cite": "297 N.C. 181", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568312 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "185" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0181-01" ] }, { "cite": "176 S.E.2d 161", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1970, "pin_cites": [ { "page": "163" } ], "opinion_index": 0 }, { "cite": "277 N.C. 94", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561932 ], "year": 1970, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/nc/277/0094-01" ] }, { "cite": "355 S.E.2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "840", "parenthetical": "citing Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)" } ], "opinion_index": 0 }, { "cite": "85 N.C. App. 669", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170267 ], "year": 1987, "pin_cites": [ { "page": "670", "parenthetical": "citing Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/85/0669-01" ] } ], "analysis": { "cardinality": 855, "char_count": 18784, "ocr_confidence": 0.755, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.13741554044270535 }, "sha256": "1e98361fd5774b231e20d1dbba96f735b040bc5c3eefa8da3e10188b55757c5a", "simhash": "1:a38ffc3877cdacd6", "word_count": 3002 }, "last_updated": "2023-07-14T17:06:47.704823+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEPHENS and STROUD concur." ], "parties": [ "JAMES ERIC POOLE and WILLIAM SETH MARLOWE, Plaintiffs v. BAHAMAS SALES ASSOCIATE, LLC, GINN FINANCIAL SERVICES, LLC, THE GINN COMPANIES, LLC, GINN DEVELOPMENT COMPANY, LLC, GINN DEVELOPMENT INTERNATIONAL, LLC, GINN REAL ESTATE COMPANY, LLC, GINN-LA WEST END, LIMITED CORP., GINN-LA GLADYS FORK LTD., LLLP, LA-GLADYS FORK GP, LLC, GINN-LA LAUREL CREEK LTD., LLLP, GINN-LAUREL CREEK GP, LLC, GINN CONSTRUCTION COMPANY, LLC, GINN LAURELMOR CONDOMINIUMS, LLC, THE CLUB AT LAURELMOR, LLC, GINN-LA CS BORROWER, LLC, GINN-LA CS HOLDING COMPANY, LLC, Defendants" ], "opinions": [ { "text": "MARTIN, Chief Judge.\nPlaintiffs James Eric Poole and William Seth Marlowe appeal from the trial court\u2019s order dismissing with prejudice their Complaint and First Amended Complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). For the reasons stated, we affirm.\nOn 25 March 2009 and 14 December 2009, plaintiffs filed a Complaint and First Amended Complaint, respectively, against sixteen named defendants, including The Ginn Companies, LLC (\u201cdefendant Ginn\u201d), Ginn Financial Services, LLC (\u201cdefendant GFS\u201d), Bahamas Sales Associate, LLC (\u201cdefendant BSA\u201d), and Ginn-LA West End, Limited Corp. (\u201cdefendant Ginn-LA West End\u201d). According to plaintiffs, defendant BSA is a Delaware limited liability company with its principal place of business in Florida, and is wholly-owned by defendant GFS. Defendant GFS is a Georgia limited liability company domesticated in North Carolina, and is wholly-owned by defendant Ginn. Defendant Ginn is a Delaware limited liability company. All remaining named defendants are alleged to be (1) wholly-owned subsidiaries or corporate affiliates of defendant Ginn, (2) organized under the laws of Georgia, Delaware, or the Bahamas, (3) domesticated in North Carolina, and (4) collectively referred to as the \u201cGinn Network Entities.\u201d\nIn October 2006, plaintiffs executed a Contract for Lot Purchase (the \u201cContract\u201d) with defendant Ginn-LA West End, in which defendant Ginn-LA West End agreed to sell plaintiffs a residential resort lot in the Ginn Sur Mer Club & Resort development \u2014 designated as the \u201cVersailles Sur Mer\u201d development in the Complaint and First Amended Complaint \u2014 on Grand Bahama Island in the Commonwealth of the Bahamas for $575,900.00. Plaintiffs alleged that they paid cash consideration in the amount of $115,200.00 and, in December 2006, plaintiffs obtained financing for the balance of the purchase price in an Adjustable Rate Balloon Note (the \u201cNote\u201d) from defendant BSA for \u25a0 the principal amount of $460,720.00. In January 2007, defendant GinnLA West End conveyed the subject property to plaintiffs by an Indenture of Conveyance. On the same day, plaintiffs granted an Indenture of Mortgage to defendant BSA for the amount specified in the Note. Both documents were filed and recorded with the Bahamas Registrar General.\nPlaintiffs alleged that, because some of the Ginn Network Entities \u201cdefaulted on terms of their own development indebtedness in connection with Versailles Sur Mer[,]... development plans for the resorts have been altered, limited and circumscribed, severely impairing the expected value of the lot sold to [p]laintiffs.\u201d Consequently, plaintiffs alleged that \u201cit became impracticable for [plaintiffs] to service or pay the Note.\u201d Plaintiffs did not allege that defendants commenced any action to enforce the Note, and did not allege that defendants instituted foreclosure proceedings upon plaintiffs\u2019 default. Nevertheless, plaintiffs claim that defendants violated North Carolina\u2019s \u201canti-deficiency\u201d statute under N.C.G.S. \u00a7 45-21.38, committed unfair and deceptive trade practices in violation of N.C.G.S. \u00a7 75-1.1, and requested that the trial court declare \u201cthe nonexistence of [plaintiffs\u2019 personal liability under the Note.\u201d\nDefendants moved to dismiss plaintiffs\u2019 Complaint pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(1), (3), and (6). The trial court denied defendants\u2019 motions under Rule 12(b)(1) and (3), but allowed defendants\u2019 motion under Rule 12(b)(6) \u201con the grounds that the Complaint and First Amended Complaint fail to state a claim upon which relief can be granted because the matter alleged is not ripe.\u201d After the trial court dismissed plaintiffs\u2019 Complaint and First Amended Complaint with prejudice, plaintiffs filed timely notice of appeal.\n\u201cA motion to dismiss made pursuant to G.S. 1A-1, Rule 12(b)(6) tests the legal sufficiency of the complaint.\u201d Harris v. NCNB Nat\u2019l Bank of N.C., 85 N.C. App. 669, 670, 355 S.E.2d 838, 840 (1987) (citing Sutton v. Duke, 277 N.C. 94, 98, 176 S.E.2d 161, 163 (1970)). \u201cThe question for the court is whether, as a matter of law, the allegations of the complaint, treated as true,, are sufficient to state a claim upon which relief may be granted under some legal theory, whether properly labeled or not.\u201d Id. (citing Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615 (1979), disapproved of on other grounds by Dickens v. Puryear, 302 N.C. 437, 448, 276 S.E.2d 325, 332 (1981)). \u201cIn general, \u2018a complaint should not be dismissed for insufficiency unless it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim.\u2019 \u201d Id. at 670-71, 355 S.E.2d 840 (emphasis in original omitted) (quoting Stanback, 297 N.C. at 185, 254 S.E.2d at 615). \u201cSuch a lack of merit may consist of the disclosure of facts which will necessarily defeat the claim as well as where there is an absence of law or fact necessary to support a claim.\u201d Id. at 671, 355 S.E.2d at 840-41.\n[1 ] Plaintiffs first contend the trial court erred by dismissing their first claim for relief pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6) because defendants\u2019 alleged violation of N.C.G.S. \u00a7 45-21.38, the \u201canti-deficiency\u201d statute, caused injury to plaintiffs \u201cthat is neither theoretical nor anticipated, but existing.\u201d We disagree.\nN.C.G.S. \u00a7 45-21.38 provides:\nIn all sales of real property by mortgagees and/or trustees under powers of sale contained in any mortgage or deed of trust executed after February 6, 1933, or where judgment or decree is given for the foreclosure of any mortgage executed after February 6, 1933, to secure to the seller the payment of the balance of the purchase price of real property, the mortgagee or trustee or holder of the notes secured by such mortgage or deed of trust shall not be entitled to a deficiency judgment on account of such mortgage, deed of trust or obligation secured by the same: Provided, said evidence of indebtedness shows upon the face that it is for balance of purchase money for real estate: Provided, further, that when said note or notes are prepared under the direction and supervision of the seller or sellers, he, it, or they shall cause a provision to be inserted in said note disclosing that it is for purchase money of real estate; in default of which the seller or sellers shall be liable to purchaser for any loss which he might sustain by reason of the failure to insert said provisions as herein set out.\nN.C. Gen. Stat. \u00a7 45-21.38 (2009). The \u201cmanifest intention\u201d of this statute is \u201cto limit the creditor to the property conveyed when the note and mortgage or deed of trust are executed to the seller of the real estate and the securing instruments state that they are for the purpose of securing the balance of the purchase price.\u201d Ross Realty Co. v. First Citizens Bank & Tr. Co., 296 N.C. 366, 370, 250 S.E.2d 271, 273 (1979); see also id. at 371, 250 S.E.2d at 274 (\u201c[The General Assembly\u2019s intent in enacting the statute was] to protect vendees from oppression by vendors and mortgagors from oppression by mortgagees.\u201d). In furtherance of this intention, \u201c[t]he statute, G.S. \u00a7 45-21.38 makes the seller liable for losses which the purchaser sustains because of seller\u2019s failure to insert a statement that debt is for purchase money in a note and deed of trust prepared by it or under its supervision.\u201d Childers v. Parker\u2019s Inc. (Childers I), 259 N.C. 237, 238, 130 S.E.2d 323, 324 (1963) (emphasis added). Our Supreme Court has determined that a \u201cpurchaser has not sustained a loss as contemplated by the statute until he has been compelled to pay or judgment has been rendered fixing his liability\u201d \u201c[w]here there has been a foreclosure and the proceeds are insufficient to pay the amount called for in the note.\u201d Id. (emphasis added).\nIn Childers I, plaintiffs instituted an action in which they sought to recover \u201cthe sum they anticipate [d] they may be compelled to pay to a third party because of the asserted failure of defendant to state in a note and deed of trust given by plaintiffs that the instruments were for the purchase of the land described in the deed of trust.\u201d Id. at 237, 130 S.E.2d at 323. In that case, plaintiffs-alleged that a party \u201chad demanded payment of the balance owing on [a] note and threatened suit unless said sum was paid. [However, pjlaintiffs offered no evidence to support these allegations.\u201d Id. at 238, 130 S.E.2d at 324 (emphasis added). \u201cPlaintiffs [also] offered no evidence of payment or judgment fixing their liability. To the contrary[, plaintiffs\u2019] allegations show[ed] no loss ha[d] as yet been incurred. At most plaintiffs show[ed only] apotential loss.\u201d Id. (emphasis added). Thus, the Court concluded that \u201c[t]his [wa]s not sufficient\u201d to establish that plaintiffs had sustained a loss as contemplated by N.C.G.S. \u00a7 45-21.38. See id. Therefore, because the action was \u201cinstituted prior to the time plaintiffs\u2019 liability . . . had been established, [the appeal] was dismissed because prematurely brought.\u201d Childers v. Parker\u2019s, Inc. (Childers II), 274 N.C. 256, 259, 162 S.E.2d 481, 483 (1968) (citing Childers I, 259 N.C. at 238, 130 S.E.2d at 324).\nIn the present case, plaintiffs alleged that the Note was \u201cprepared under the direction and supervision of [defendants\u201d and that, \u201c[i]n violation of [N.C.G.S. \u00a7 45-21.38], [defendants failed to cause a provision to be inserted in the Note disclosing that it was for purchase money of real estate[.]\u201d Plaintiffs requested that the trial court enter \u201c[a] money judgment against [defendants, jointly and severally, for actual damages not less than $460,720, trebled, setting off and recouping against the amount of any liability arising under the Note.\u201d However, in the present case, plaintiffs admit that defendants have neither instituted foreclosure proceedings against them nor commenced any action to enforce the Note. We do not discern any relevant distinction between plaintiffs\u2019 allegations in the present case and those in Childers I. Therefore, assuming without deciding that plaintiffs may be entitled to protection under the statute, \u201cnotwithstanding that the property [at issue] is located in the Bahamas and [that defendants included a Florida choice-of-law clause in the Note,\u201d we conclude that this action, like the action in Childers I, was \u201cprematurely brought\u201d and the trial court did not err by dismissing plaintiffs\u2019 first claim for relief. See Childers II, 274 N.C. at 259, 162 S.E.2d at 483 (citing Childers I, 259 N.C. at 238, 130 S.E.2d at 324).\nPlaintiffs next contend the trial court erred by dismissing their third claim for relief requesting that the trial court \u201cdeclare the nonexistence of [plaintiffs\u2019 personal liability under the Note\u201d because they allege that \u201clitigation seeking to impose personal liability under the Note is practically inevitable.\u201d Plaintiffs assert that their allegations in support of this claim \u201creveal[] the existence of an actual controversy.\u201d Again, we disagree.\nAlthough a motion to dismiss under Rule 12(b)(6) \u201cis seldom an appropriate pleading in actions for declaratory judgments, . . . [i]t is allowed . . . when the record clearly shows that there is no basis for declaratory relief as when the complaint does not allege an actual, genuine existing controversy.\u201d N.C. Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 439, 206 S.E.2d 178, 182 (1974). \u201cIt is not necessary for one party to have an actual right of action against another for an actual controversy to exist which would support declaratory relief. However, it is necessary that the Courts be convinced that the litigation appears to be unavoidable.\u201d Id. at 450, 206 S.E.2d at 189. \u201cMere apprehension or the mere threat of an action or a suit is not enough.\u201d Gaston Bd. of Realtors, Inc. v. Harrison, 311 N.C. 230, 234, 316 S.E.2d 59, 62 (1984).\nAdditionally, while \u201c[a] declaratory proceeding can serve a useful purpose where the plaintiff seeks to clarify its legal rights in order to prevent the accrual of damages, or seeks to litigate a controversy where the real plaintiff in the controversy has either failed to file suit, or has delayed in filing[,] ... a declaratory suit should not be used as a device for \u2018procedural fencing.\u2019 \u201d Coca-Cola Bottling Co. Consol. v. Durham Coca-Cola Bottling Co., 141 N.C. App. 569, 578-79, 541 S.E.2d 157, 164 (2000), disc. review denied, 353 N.C. 370, 547 S.E.2d 433 (2001). For instance, \u201c[a] defendant in a pending lawsuit should not be permitted to bring a declaratory suit involving overlapping issues in a different jurisdiction as a strategic means of obtaining a more preferable forum.\u201d Id. at 579, 541 S.E.2d at 164. \u201cOtherwise, the natural plaintiff in the underlying controversy would be deprived of its right to choose the forum and time of suit.\u201d Id. \u201cFurthermore, it is inappropriate for a potential tortfeasor to bring a declaratory suit against an injured party for the sole purpose of compelling the injured party \u2018to litigate [its] claims at a time and in a forum chosen by the alleged tortfeasor.\u2019 \u201d Id. (alteration in original) (quoting Cunningham Bros., Inc. v. Bail, 407 F.2d 1165, 1167 (7th Cir.), cert. denied, 395 U.S. 959, 23 L. Ed. 2d 745 (1969)).\nHere, plaintiffs alleged that defendants BSA and GFS \u201chave threatened, in lieu of foreclosing, to commence an action to enforce the Note,\u201d and demanded payment of all outstanding principal, accrued interest, and fees in a letter, which stated: \u201cNote Holder reserves the right to exercise any or all of the rights and remedies available to it, including, but not limited to, initiating legal proceedings against you.\u201d The record further indicates that, although the Note expressly provides that its terms do not prevent the Lender, defendant BSA, from \u201cbringing any action or exercising any rights within any other state or jurisdiction,\u201d the Note contains a choice-of-law provision declaring that it \u201cshall be governed by and interpreted in accordance with the law of the State of Florida.\u201d Based on these allegations, plaintiffs assert that \u201clitigation \u2014 m Florida \u2014 is a practical inevitability,\u201d (emphasis added), and so seek to have a North Carolina trial court declare that the \u201canti-deficiency\u201d statute relieves plaintiffs of any personal liability that they may incur on the Note if defendants foreclose on the subject property and if the proceeds from the foreclosure are insufficient to pay the balance of the Note and if plaintiffs are later compelled to pay the deficiency or if judgment is rendered fixing plaintiffs\u2019 liability. In their brief, plaintiffs assert that \u201c[defendants will assuredly enforce the obligation in a Florida court\u201d and seek to have a North Carolina court declare the applicability of N.C.G.S. \u00a7 45-21.38 because they argue that a Florida court \u201cwould not subordinate the Florida choice-of-law clause in the Note to the legislative purpose of the North Carolina anti-deficiency statute,\u201d and would thus \u201cdepriv[e] the North Carolina resident [p]laintiffs of the protection intended by the statute.\u201d However, \u201c[w]e cannot condone using the Declaratory Judgment Act to obtain a more preferable venue in which to litigate a controversy. Such \u2018procedural fencing\u2019 deprives the natural plaintiff of the right to choose the time and forum for suit.\u201d See Coca-Cola Bottling Co. Consol., 141 N.C. App. at 581, 541 S.E.2d at 165. Since the plain language of plaintiffs\u2019 brief suggests that plaintiffs\u2019 decision to file the present action in this jurisdiction \u201cis merely a strategic maneuver to achieve a preferable forum,\u201d see id. at 579, 541 S.E.2d at 164, or, at a minimum, is an attempt to obligate a foreign jurisdiction to give full faith and credit to a judgment applying the laws of this jurisdiction in order to circumvent a choice-of-law provision agreed to by the parties which would otherwise subject them to the laws of the State of Florida, we conclude that the trial court did not err by denying plaintiffs\u2019 request for a declaratory judgment and dismissing plaintiffs\u2019 claim with prejudice. Our disposition renders it unnecessary to address plaintiffs\u2019 remaining arguments or defendants\u2019 cross-issues on appeal.\nAffirmed.\nJudges STEPHENS and STROUD concur.\n. Defendant Ginn-LA West End, a Bahamas corporation, and defendants Ginn-LA CS Borrower, LLC and Ginn-LA CS Holding Company, LLC, each a Delaware limited liability company, are not alleged to be domesticated in North Carolina.\n. Plaintiffs did not bring forward any argument that the trial court erred by dismissing their claim that defendants committed unfair and deceptive trade practices. Therefore, we leave the trial court\u2019s dismissal as to this claim undisturbed. See N.C.R. App. P. 28(a) (\u201cThe scope of review on appeal is limited to issues . . . presented in the several briefs.\u201d).", "type": "majority", "author": "MARTIN, Chief Judge." } ], "attorneys": [ "Bishop, Capitano & Moss, P.A., by J. Daniel Bishop, for plaintiff s-appellants.", "Doughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for defendants-appellees." ], "corrections": "", "head_matter": "JAMES ERIC POOLE and WILLIAM SETH MARLOWE, Plaintiffs v. BAHAMAS SALES ASSOCIATE, LLC, GINN FINANCIAL SERVICES, LLC, THE GINN COMPANIES, LLC, GINN DEVELOPMENT COMPANY, LLC, GINN DEVELOPMENT INTERNATIONAL, LLC, GINN REAL ESTATE COMPANY, LLC, GINN-LA WEST END, LIMITED CORP., GINN-LA GLADYS FORK LTD., LLLP, LA-GLADYS FORK GP, LLC, GINN-LA LAUREL CREEK LTD., LLLP, GINN-LAUREL CREEK GP, LLC, GINN CONSTRUCTION COMPANY, LLC, GINN LAURELMOR CONDOMINIUMS, LLC, THE CLUB AT LAURELMOR, LLC, GINN-LA CS BORROWER, LLC, GINN-LA CS HOLDING COMPANY, LLC, Defendants\nNo. COA10-394\n(Filed 4 January 2011)\n1. Mortgages and Deeds of Trust\u2014 anti-deficiency statute\u2014 action brought prematurely \u2014 dismissal proper\nThe trial court did not err by dismissing plaintiffs\u2019 claim for relief based on defendants\u2019 alleged violation of N.C.G.S. \u00a7 45-21.38, the \u201canti-deficiency\u201d statute, pursuant to N.C.G.S. \u00a7 1A-1, Rule 12(b)(6). Where plaintiffs\u2019 injury was merely theoretical or anticipated, the action was brought prematurely.\n2. Loans\u2014 liability under note \u2014 declaratory judgment requested \u2014 preferable forum \u2014 choice-of-law\u2014dismissal\nThe trial court did not err by dismissing plaintiffs\u2019 claim for relief requesting that the trial court declare the nonexistence of their personal liability under an adjustable rate balloon note. The plain language of plaintiffs\u2019 brief suggested that plaintiffs\u2019 decision to file the present action in this jurisdiction was merely a strategic maneuver to achieve a preferable forum or, at a minimum, was an attempt to circumvent a choice-of-law provision agreed to by the parties which would otherwise subject them to the laws of the State of Florida.\nAppeal by plaintiffs from order entered 29 December 2009 by Judge Richard D. Boner in Mecklenburg County Superior Court. Heard in the Court of Appeals 26 October 2010.\nBishop, Capitano & Moss, P.A., by J. Daniel Bishop, for plaintiff s-appellants.\nDoughton & Hart PLLC, by Thomas J. Doughton and Amy L. Rich, for defendants-appellees." }, "file_name": "0136-01", "first_page_order": 146, "last_page_order": 153 }