{ "id": 4348652, "name": "COASTAL FEDERAL CREDIT UNION, Plaintiff v. MELISSA OVERCASH FALLS and STEPHEN ANTHONY OVERCASH, Defendants", "name_abbreviation": "Coastal Federal Credit Union v. Falls", "decision_date": "2011-11-15", "docket_number": "No. COA11-331", "first_page": "100", "last_page": "109", "citations": [ { "type": "official", "cite": "217 N.C. App. 100" } ], "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": "644 S.E.2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638421 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "627", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/644/0625-01" ] }, { "cite": "652 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12639737 ], "year": 2007, "pin_cites": [ { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/se2d/652/0671-01" ] }, { "cite": "643 S.E.2d 77", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12638237 ], "year": 2007, "pin_cites": [ { "page": "79", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/643/0077-01" ] }, { "cite": "659 S.E.2d 742", "category": "reporters:state_regional", "reporter": "S.E.2d", "case_ids": [ 12640823 ], "year": 2008, "pin_cites": [ { "page": "746", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/se2d/659/0742-01" ] }, { "cite": "183 N.C. App. 625", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8205177 ], "year": 2007, "pin_cites": [ { "page": "628", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/183/0625-01" ] }, { "cite": "524 S.E.2d 587", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "588" } ], "opinion_index": 0 }, { "cite": "136 N.C. App. 379", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11239675 ], "year": 2000, "pin_cites": [ { "page": "381" } ], "opinion_index": 0, "case_paths": [ "/nc-app/136/0379-01" ] }, { "cite": "504 S.E.2d 571", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1998, "pin_cites": [ { "page": "573", "parenthetical": "citation omitted" }, { "page": "573", "parenthetical": "citation omitted" }, { "page": "573" } ], "opinion_index": 0 }, { "cite": "130 N.C. App. 751", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11470348 ], "weight": 3, "year": 1998, "pin_cites": [ { "page": "754", "parenthetical": "citation omitted" }, { "page": "755" }, { "page": "755" } ], "opinion_index": 0, "case_paths": [ "/nc-app/130/0751-01" ] }, { "cite": "539 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2000, "pin_cites": [ { "page": "366" } ], "opinion_index": 0 }, { "cite": "141 N.C. App. 475", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9441627 ], "year": 2000, "pin_cites": [ { "page": "480" } ], "opinion_index": 0, "case_paths": [ "/nc-app/141/0475-01" ] }, { "cite": "241 S.E.2d 74", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1978, "pin_cites": [ { "page": "77" }, { "page": "77" } ], "opinion_index": 0 }, { "cite": "35 N.C. App. 34", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547076 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "39" }, { "page": "39" } ], "opinion_index": 0, "case_paths": [ "/nc-app/35/0034-01" ] }, { "cite": "231 S.E.2d 685", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1977, "pin_cites": [ { "page": "688", "parenthetical": "citations omitted" }, { "page": "687", "parenthetical": "citations omitted" }, { "page": "688", "parenthetical": "holding that because the defendants had made an appearance default judgment filed by the clerk was void" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 288", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550096 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "291", "parenthetical": "citations omitted" }, { "page": "291" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0288-01" ] }, { "cite": "365 S.E.2d 170", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "172" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 111", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520636 ], "year": 1988, "pin_cites": [ { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0111-01" ] }, { "cite": "681 S.E.2d 813", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "817" } ], "opinion_index": 0 }, { "cite": "199 N.C. App. 531", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4170045 ], "year": 2009, "pin_cites": [ { "page": "537" } ], "opinion_index": 0, "case_paths": [ "/nc-app/199/0531-01" ] }, { "cite": "186 N.C. App. 606", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8159086 ], "year": 2007, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/nc-app/186/0606-01" ] }, { "cite": "182 N.C. App. 733", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8176550 ], "year": 2007, "pin_cites": [ { "page": "736", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0733-01" ] }, { "cite": "189 N.C. App. 696", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4156577 ], "year": 2008, "pin_cites": [ { "page": "699", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/189/0696-01" ] }, { "cite": "674 S.E.2d 751", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2009, "pin_cites": [ { "page": "752" } ], "opinion_index": 0 }, { "cite": "196 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 4166424 ], "year": 2009, "pin_cites": [ { "page": "352-53" } ], "opinion_index": 0, "case_paths": [ "/nc-app/196/0351-01" ] }, { "cite": "415 S.E.2d 378", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1992, "pin_cites": [ { "page": "380" } ], "opinion_index": 0 }, { "cite": "106 N.C. App. 122", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 5313964 ], "year": 1992, "pin_cites": [ { "page": "124-25" } ], "opinion_index": 0, "case_paths": [ "/nc-app/106/0122-01" ] }, { "cite": "610 S.E.2d 469", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2005, "pin_cites": [ { "page": "470", "parenthetical": "citing Grant v. Cox, 106 N.C. App. 122, 124-25, 415 S.E.2d 378, 380 (1992)" } ], "opinion_index": 0 }, { "cite": "169 N.C. App. 619", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8472171 ], "year": 2005, "pin_cites": [ { "page": "621", "parenthetical": "citing Grant v. Cox, 106 N.C. App. 122, 124-25, 415 S.E.2d 378, 380 (1992)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/169/0619-01" ] } ], "analysis": { "cardinality": 791, "char_count": 20933, "ocr_confidence": 0.738, "pagerank": { "raw": 5.9156169164335014e-08, "percentile": 0.3696702008495476 }, "sha256": "604fdfa1bd53380ede722bcf2a9289d3b704cb175eebb5fc4de54e9568fadc72", "simhash": "1:b7ab7c6cdc7d8d77", "word_count": 3442 }, "last_updated": "2023-07-14T22:07:22.966851+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GEER and THIGPEN concur." ], "parties": [ "COASTAL FEDERAL CREDIT UNION, Plaintiff v. MELISSA OVERCASH FALLS and STEPHEN ANTHONY OVERCASH, Defendants" ], "opinions": [ { "text": "STROUD, Judge.\nMelissa Overcash Falls and Stephen Anthony Overcash (referred to collectively as \u201cdefendants\u201d) appeal from a trial court\u2019s order denying their motion to set aside entry of default and default judgment. For the following reasons, we remand for further findings of fact.\nI. Background\nOn 11 May 2010, Coastal Federal Credit Union (\u201cplaintiff\u2019) filed suit against defendants alleging that defendants had defaulted under the terms of an installment sales contract for a 2001 Ford F-350 truck, which was entered into on 6 May 2006. Plaintiff requested that the court award the deficiency due, $26,000.00, plus interest, and attorney\u2019s fees. On 18 June 2010, plaintiff filed a \u201cmotion and affidavit for entry of default and default judgment\u201d alleging that \u201c[c]ounsel for Plaintiff, upon information and belief, says that the Defendants have failed to plead and that no extension of time in which to file pleadings has been requested, and the time within which an Answer or other responsive pleading may be filed has expired[,]\u201d and \u201c[u]pon information and belief, Defendants have failed to appear, either personally or by representative, and are not infants nor incompetents.\u201d On 18 June 2010, the Gaston County Assistant Clerk of Superior Court allowed plaintiff\u2019s motion and entered default and default judgment against both defendants for the sum requested, including interest, and awarded $3,900.00 in attorney\u2019s fees. On 2 November 2010, defendants filed a verified motion to set aside entry of default and default judgment pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rules 6, 55, and 60, alleging that \u201c[d]uring the summer of 2010 and prior to the entry of default\u201d defendant Falls had been in contact with the law firm representing plaintiff in this action and had talked with an employee named \u201cJoyce\u201d who had attempted to set up a payment plan for the debt; this communication amounted to an \u201cappearance\u201d pursuant to Rule 55(b), which required plaintiff to serve defendants with written notice of the application for judgment; and because no notice was ever given to defendants, the default judgment against defendants is void and should be set aside pursuant to Rule 60(b). Defendants also argued that the original contract did not call for the payment of attorney\u2019s fees upon breach of the contract and they had a\nmeritorious defense in this action because the automobile that provides the subject matter of the contract dispute was fully insured by Farm Bureau Insurance Company . . . and the Defendants should have the ability to pursue a third-party claim against their insurance company for the full satisfaction of the loan alleged in the Plaintiff\u2019s complaint.\nIn response to this motion, on 9 December 2010 plaintiff filed the \u201caffidavit of Joyce B. Courtney\u201d custodian of business records at the law firm representing plaintiff. The affidavit stated that, according to their records, \u201c[ajfter the filing of the Complaint on May 11, 2010, and prior to the Entry of Default and Judgment by Default, on June 18, 2010, no communications with [plaintiff\u2019s law firm] were made by the Defendants or others acting on their behalf\u2019 but it was not until \u201cJune 28, 2010, [that] Defendant Falls made contact with [plaintiff\u2019s firm]\u201d and Ms. Courtney spoke with defendant Falls regarding setting up a payment plan, after default judgment had been entered. In response to defendant\u2019s allegations that she spoke with defendant Falls, Ms. Courtney stated \u201cI did not speak with Defendant Falls, Defendant Overcash, or any party acting on their behalf prior to the Entry of Default and Judgment by Default on June 18, 2010[.]\u201d Included with the affidavit was a \u201cHistory Report\u201d detailing the firm\u2019s work on plaintiff\u2019s case, including each contact that the firm attempted to make with defendants\u2019. There is no contact by either defendant noted until 28 June 2010. By order entered 13 January 2011, the trial court denied defendants motion to set aside the entry of default and default judgment. On 19 January 2011, defendants gave notice of appeal from the 13 January 2011 order.\nII. Appearance\nDefendants first contend that \u201cthe trial court committed reversible error by denying [their] motion to set aside the default judgment pursuant to Rule 60(b)(4) because the judgment entered by the clerk was void[,]\u201d as they made an appearance prior to entry of default judgment.\nWe have stated that\nN.C. Gen. Stat. \u00a7 1A-1, Rule 55(d) (2007) provides that a default judgment may be set aside in accordance with N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b). Rule 60(b) states that \u201cthe court may relieve a party . . . from a final judgment, order, or proceeding for the following reasons: ... (4) [t]he judgment is void[.]\u201d N.C.G.S. \u00a7 1A-1, Rule 60(b) (2007). Motions for relief from judgment are reviewed for an abuse of discretion. Basnight Constr. Co. v. Peters & White Constr. Co., 169 N.C. App. 619, 621, 610 S.E.2d 469, 470 (2005) (citing Grant v. Cox, 106 N.C. App. 122, 124-25, 415 S.E.2d 378, 380 (1992)).\nConnette v. Jones, 196 N.C. App. 351, 352-53, 674 S.E.2d 751, 752 (2009). Further in the context of a default judgment, we have stated that\n\u201c \u2018[w]hen the trial court sits without a jury, the standard of review on appeal is whether there was competent evidence to support the trial court\u2019s findings of fact and whether its conclusions of law were proper in light of such facts.\u2019 \u201d Knight v. Higgs, 189 N.C. App. 696, 699, 659 S.E.2d 742, 746 (2008) (citation omitted). \u201c \u2018Effective appellate review of an order entered by a trial court sitting without a jury is largely dependent upon the specificity by which the order\u2019s rationale is articulated.\u2019 \u201d In re D.R.B., 182 N.C. App. 733, 736, 643 S.E.2d 77, 79 (2007) (citation omitted). Evidence must support the findings, the findings must support the conclusions of law, and the conclusions of law must support the ensuing judgment. Lake Gaston Estates Prop. Owners Ass\u2019n v. County of Warren, 186 N.C. App. 606, 610, 652 S.E.2d 671, 673 (2007).\nJackson v. Culbreth, 199 N.C. App. 531, 537, 681 S.E.2d 813, 817 (2009).\nDefendants\u2019 first argument on appeal is the same as their first argument in their motion to set aside entry of default and default judgment: Defendants made contact with an employee at plaintiff\u2019s law firm to set up a payment plan prior to entry of default judgment; this contact was an \u201cappearance\u201d pursuant to Rule 55(b); thus, they were entitled to notice of the motion for entry of default judgment, which they did not receive; and the clerk did not have jurisdiction to enter the default judgment. N.C. Gen. Stat. \u00a7 1A-1, Rule 55(b) (2009), states that judgment by default may be entered:\n(1) By the Clerk. \u2014 When the plaintiffs claim against a defendant is for a sum certain or for a sum which can by computation be made certain, the clerk upon request of the plaintiff and upon affidavit of the amount due shall enter judgment for that amount and costs against the defendant, if the defendant has been defaulted for failure to appear and if the defendant is not an infant or incompetent person. A verified pleading may be used in lieu of an affidavit when the pleading contains information sufficient to determine or compute the sum certain.\n(2) By the Judge.\u2014\na. In all other cases the party entitled to a judgment by default shall apply to the judge therefor; .... If the party against whom judgment by default is sought has appeared in the action, that party (or, if appearing by representative, the representative) shall be served with written notice of the application for judgment at least three days prior to the hearing on such application. . . .\n(Emphasis added.) Therefore, if a defendant makes an \u201cappearance in the plaintiff\u2019s action for the purposes of Rule 55, it follows that plaintiff [is] required to provide the three days\u2019 notice.\u201d Stanaland v. Stanaland, 89 N.C. App. 111, 115, 365 S.E.2d 170, 172 (1988). We have further noted that\nthis statute is clearly intended to allow a clerk to enter default judgment against a defendant only if he has never made an appearance. Moreover, when a party, or his representative, has appeared in an action and later defaults, then G.S. 1A-1, Rule 55(b) requires that the judge, rather than the clerk, enter the judgment by default after the required notice has been given.\nRoland v. W & L Motor Lines, Inc., 32 N.C. App. 288, 291, 231 S.E.2d 685, 688 (1977) (citations omitted).\nAs a general rule, an \u201cappearance\u201d in an action involves some presentation or submission to the court. However, it has been stated that a defendant does not have to respond directly to a complaint in order for his actions to constitute an appearance. In fact, an appearance may arise by implication when a defendant takes, seeks, or agrees to some step in the proceedings that is beneficial to himself or detrimental to the plaintiff.\nId. at 289, 231 S.E.2d at 687 (citations omitted). This Court has held that when a defendant does not make an appearance prior to the entry of default by the clerk or default judgment, the plaintiff is not required to serve written notice of application of a default judgment at least three days prior to the hearing on the application. North Brook Farm Lines, Inc. v. McBrayer, 35 N.C. App. 34, 39, 241 S.E.2d 74, 77 (1978).\nDefendants do not challenge any of the findings of fact as not being supported by the evidence. Instead defendants argue that the findings do not support the trial court\u2019s conclusion that \u201c[t]he communications between the Defendant Falls and employees of the Plaintiff\u2019s attorney do not constitute an \u2018appearance\u2019 as that term is utilized by Rule 55 of the North Carolina Rules of Civil Procedure].]\u201d Defendants argue that the findings \u201cconfirm the Defendants\u2019 position by expressly concluding that Melissa Overcash acting on her own and as an agent for her father, \u2018spoke with an employee named \u2018Joyce\u2019 who attempted to organize a payment plan so that Falls could satisfy the loan\u2019s balance\u2019 \u201d and \u201cmakes plain that theses communications occurred between Falls and the Plaintiff\u2019s law firm \u2018after [Falls and Overcash] were served with the complaint and prior to the expiration of her time to file responsive pleadings as required by law[.]\u2019 \u201d Defendants, citing several cases, also argue that defendant Falls\u2019 contact with the law firm amounted to an appearance. Plaintiff counters that defendants are misconstruing the trial court\u2019s findings, as finding number three is \u201ca recital of [defendants\u2019] allegations only, not as a finding that said allegations are true\u201d but it is finding of fact four, which includes plaintiff\u2019s evidence, that supports the trial court\u2019s conclusion that the order of entry of default and default judgment is not void. (Emphasis in original.)\nThe trial court\u2019s relevant findings of fact state:\n3. The Defendant\u2019s verified motion reveals that after being served with the complaint and prior to the expiration of her time to file responsive pleadings as provided by law, Melissa Falls contacted the law firm of Kirschbaum, Nanney, Keenan & Griffin, P.A. to inquire about the status of the action. Falls spoke with an employee named \u201cJoyce,\u201d who attempted to organize a payment plan for Falls to satisfy the loan\u2019s balance. During June, July, and August the Defendant Falls continued her attempts to organize a payment plan with the Plaintiff\u2019s law firm. Following her conversations with the Plaintiff\u2019s law firm, Falls informed her father, Stephen Overcash, that she was working on a compromise with the Plaintiff\u2019s attorney and that no further action was necessary on his part. Defendant Overcash reasonably relied upon his daughter\u2019s statements and took no further action.\n4. Although Ms. Falls remains adamant that the communications between herself and the Plaintiff\u2019s attorney\u2019s law firm occurred prior to 18 June 2010, the Plaintiff\u2019s affidavit in response to the Defendant\u2019s verified motion contends that neither Defendant contacted the law firm until 28 June 2010. Furthermore, the partial records attached to the Plaintiff\u2019s affidavit appear to reveal that neither Defendant contacted the Plaintiff\u2019s attorney\u2019s firm prior to the entry of default and default judgment.\n5. On 18 June 2010, the Plaintiff filed a motion for entry of default and for a default judgment before the Clerk of Gaston County Superior Court. The Plaintiff never provided notice to the Defendants of this hearing, and neither of the Defendants were present when the clerk entered the Defendants\u2019 default and judgment in favor of the Plaintiff. Furthermore, the Plaintiff never served the Defendants with the default judgment.\nAccording to Rule 55(b), for any contact by defendant to amount to an \u201cappearancef,]\u201d it must occur before entry of default judgment. See N.C. Gen. Stat. \u00a7 1A-1, Rule 55(b). As the parties\u2019 arguments indicate, it is not clear whether the trial court found if defendants contacted plaintiff\u2019s law firm before or after entry of default judgment, as its findings on this issue are merely recitations of the parties\u2019 evidence. \u201cWhere there is directly conflicting evidence on key issues, it is especially crucial that the trial court make its own determination as to what pertinent facts are actually established by the evidence, rather than merely reciting what the evidence may tend to show.\u201d In re Gleisner, 141 N.C. App. 475, 480, 539 S.E.2d 362, 366 (2000). If no contact whatsoever was made with plaintiff prior to the entry of the default judgment, then defendants made no \u201cappearance\u201d and no notice was required and the clerk of court could properly enter default judgment. See N.C. Gen. Stat. \u00a7 1A-1, Rule 55(b); North Brook Farm Lines, Inc., 35 N.C. App. at 39, 241 S.E.2d at 77. But if defendants made an appearance prior to entry of judgment, the clerk of court had no jurisdiction to enter the default judgment. See Roland, 32 N.C. App. at 291, 231 S.E.2d at 688 (holding that because the defendants had made an appearance default judgment filed by the clerk was void). Therefore, we remand to the trial court to make findings as to when defendants made contact with plaintiffs law firm and to make the appropriate conclusions of law based upon those findings.\nIII. Entry of default\nDefendants also contend that the \u201ctrial court committed reversible error because the entry of default should have been set aside pursuant to Rule 55(d)[,]\u201d because good cause existed as defendants \u201cpossess a meritorious defense against Coastal Federal through a third-party claim against their insurance company.\u201d Defendants argue that the trial court\u2019s findings of fact, that \u201cthe vehicle that provides . . . the subject matter of this lawsuit was stolen and suffered a total loss[;]\u201d defendants \u201cmaintained comprehensive insurance coverage for this vehicle[;]\u201d and defendants had purchased Guaranteed Automobile Protection or \u201cGAP\u201d insurance coverage, show that they had a valid third-party claim and a meritorious defense that should have been permitted to go forward.\nIn their \u201cmotion to set aside entry of default and default judgment\u201d defendants made the following argument as to their meritorious defense:\n7. Finally, the Defendants have a meritorious defense in this action because the automobile that provides the subject matter of the contract dispute was fully insured by Farm Bureau Insurance Company, . . . and the Defendants should have the ability to pursue a third-party claim against their insurance company for the full satisfaction of the loan alleged in the Plaintiff\u2019s complaint.\nThe trial court made the following relevant findings:\n7. According to the verified complaint and arguments of counsel, this is an action to recover a debt incurred by the Defendants arising out of the purchase of an automobile on 6 May 2006.. In October of 2007, the automobile that provides the subject matter of this action was stolen and suffered a total loss. Although the Defendants maintained comprehensive insurance coverage for this vehicle, the Defendants\u2019 insurance company never paid the fair market value.\n8. Furthermore, when the Defendants originally purchased the vehicle, they also purchased Guaranteed Automobile Protection or \u201cGAP\u201d coverage, which would have satisfied the difference between the fair market value of the car and the total amount remaining on their financing agreement.\n9. Therefore, the Defendants appear to have a valid third-party claim against their insurance company and the entity providing GAP protection, which would absolve them from any liability to the Plaintiff.\nWe have stated that \u201c,[d]efault is a two-step process requiring (i) the entry of default and (ii) the subsequent entry of a default judgment.\u201d West v. Marko, 130 N.C. App. 751, 754, 504 S.E.2d 571, 573 (1998) (citation omitted). An entry of default may be set aside \u201c[f]or good cause shown\u201d but a default judgment may be set aside only \u201cin accordance with Rule 60(b).\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 55(d). Allowing entry of default to be set aside for \u201cgood cause shown\u201d \u201cgives a court greater freedom in granting relief than is available in the case of default judgments.... Courts are willing to grant relief from a default entry more readily and with a lesser showing than they are in the case of a default judgment.\u201d West, 130 N.C. App. at 755, 504 S.E.2d at 573 (citation omitted). \u201c[W]hat constitutes \u2018good cause\u2019 depends on the circumstances in a particular case, and within the limits of discretion],]\u201d Brown v. Lifford, 136 N.C. App. 379, 381, 524 S.E.2d 587, 588 (2000), and in making that determination the court \u201cbalance [s] the defendant\u2019s diligence with the following additional factors when deciding whether to set aside an entry of default: (1) the harm suffered by the plaintiff by virtue of the delay and (2) the potential injustice to the defendant if not allowed to defend the action.\u201d Atkins v. Mortenson, 183 N.C. App. 625, 628, 644 S.E.2d 625, 627 (2007) (citations omitted). Here, the above findings show a \u201cpotential injustice to the defendants] if [they are] not allowed to defend the action],]\u201d see id., as they indicate defendants may have had a meritorious defense. Therefore, because relief from an entry of default requires \u201ca lesser showing than ... in the case of a default judgment],]\u201d see West, 130 N.C. App. at 755, 504 S.E.2d at 573, the trial court may have found that there was \u201cgood cause\u201d to set aside the entry of default, had the default judgment not already been entered. However, unless the clerk entered the default judgment without jurisdiction because defendants had \u201cappeared\u201d prior to entry of the default judgment, these findings are unnecessary to the conclusions of law and are therefore superfluous. If the trial court were to conclude, on remand, that defendants had appeared and the default judgment is thus void, the trial court should then determine whether defendants have shown \u201cgood cause\u201d under Rule 55(d) to set aside the entry of default as well. For the foregoing reasons, we remand to the trial court for further consideration, based upon its findings of fact and conclusions of law as to the default judgment.\nREMANDED.\nJudges GEER and THIGPEN concur.\n. Defendants did not allege or argue \u201cmistake, inadvertence, surprise, or excusable neglect\u201d under N.C. Gen. Stat. \u00a7 1A-1, Rule 60(b)(1) but relied entirely upon Rule 60(b)(4).", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Kirschbaum, Nanney, Keenan & Griffin, P.A., by Krista F. Norstog Leonard, for plaintiff-appellee.", "The Bumgardner Law Firm, by Thomas D. Bumgardner, for defendants-appellants." ], "corrections": "", "head_matter": "COASTAL FEDERAL CREDIT UNION, Plaintiff v. MELISSA OVERCASH FALLS and STEPHEN ANTHONY OVERCASH, Defendants\nNo. COA11-331\n(Filed 15 November 2011)\n1. Judgments \u2014 default judgment \u2014 appearance prior to entry\nThe trial court erred by denying defendants\u2019 motion to set aside a default judgment under N.C.G.S. \u00a7 1A-1, Rule 60(b)(4) based on an alleged appearance prior to entry of a default judgment. The case was remanded to the trial court to make findings as to when defendants made contact with plaintiff\u2019s law firm and to make the appropriate conclusions of law based on those findings.\n2. Judgments \u2014 entry of default \u2014 good cause \u2014 potential injustice \u2014 meritorious defense\nThe trial court erred by failing to consider setting aside the entry of default based on good cause under N.C.G.S. \u00a7 1A-1, Rule 55(d). The findings showed a potential injustice to defendants if they were not allowed to defend the action based on a meritorious defense and the trial court may have found there was good cause had the default judgment not already been entered. If the trial court concludes on remand that defendants had appeared and the default judgment was thus void, the trial court should then determine whether defendants have shown \u201cgood cause\u201d under Rule 55(d) to set aside the entry of default.\nAppeal by defendants from order entered 13 January 2011 by Judge Richard Abemethy in District Court, Gaston County. Heard in the Court of Appeals 29 September 2011.\nKirschbaum, Nanney, Keenan & Griffin, P.A., by Krista F. Norstog Leonard, for plaintiff-appellee.\nThe Bumgardner Law Firm, by Thomas D. Bumgardner, for defendants-appellants." }, "file_name": "0100-01", "first_page_order": 110, "last_page_order": 119 }