{ "id": 4362970, "name": "IN THE MATTER OF THE FORECLOSURE OF A LIEN BY Five Oaks Recreational Association, Inc., a North Carolina Corporation against, Martin J. Horn Owner", "name_abbreviation": "In re the Foreclosure of a Lien by Five Oaks Recreational Ass'n", "decision_date": "2012-03-06", "docket_number": "No. COA11-1053", "first_page": "320", "last_page": "329", "citations": [ { "type": "official", "cite": "219 N.C. App. 320" } ], "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": "488 S.E.2d 635", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "pin_cites": [ { "page": "639", "parenthetical": "\"The requirement, that a dispute exist, is satisfied in that, prior to payment. . . the parties disputed what remedy, if any, plaintiff was entitled to receive.\" (emphasis added)" } ], "opinion_index": 0 }, { "cite": "127 N.C. App. 244", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11794271 ], "year": 1997, "pin_cites": [ { "page": "249-50", "parenthetical": "\"The requirement, that a dispute exist, is satisfied in that, prior to payment. . . the parties disputed what remedy, if any, plaintiff was entitled to receive.\" (emphasis added)" } ], "opinion_index": 0, "case_paths": [ "/nc-app/127/0244-01" ] }, { "cite": "579 S.E.2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2003, "pin_cites": [ { "page": "492", "parenthetical": "emphasis added" }, { "page": "492", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "157 N.C. App. 560", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9188037 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "563", "parenthetical": "emphasis added" }, { "page": "563" } ], "opinion_index": 0, "case_paths": [ "/nc-app/157/0560-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 25-3-311", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 3, "year": 2011, "opinion_index": 0 }, { "cite": "264 S.E.2d 385", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1980, "pin_cites": [ { "page": "385" }, { "parenthetical": "emphasis added" }, { "page": "386" } ], "opinion_index": 0 }, { "cite": "46 N.C. App. 110", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549327 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/46/0110-01" ] }, { "cite": "384 S.E.2d 689", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "691", "parenthetical": "holding no accord and satisfaction because there was no discussion between the parties that a check tendered as payment in full was intended to cover the entire debt owed" } ], "opinion_index": 0 }, { "cite": "96 N.C. App. 59", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520166 ], "year": 1989, "pin_cites": [ { "page": "62-63", "parenthetical": "holding no accord and satisfaction because there was no discussion between the parties that a check tendered as payment in full was intended to cover the entire debt owed" } ], "opinion_index": 0, "case_paths": [ "/nc-app/96/0059-01" ] }, { "cite": "189 S.E.2d 536", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1972, "pin_cites": [ { "page": "538" }, { "parenthetical": "citation omitted" }, { "page": "538", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "15 N.C. App. 64", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547570 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "68" }, { "page": "68" } ], "opinion_index": 0, "case_paths": [ "/nc-app/15/0064-01" ] }, { "cite": "131 S.E.2d 678", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "681" } ], "opinion_index": 0 }, { "cite": "260 N.C. 101", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573114 ], "year": 1963, "pin_cites": [ { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0101-01" ] }, { "cite": "80 S.E.2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1954, "pin_cites": [ { "page": "27", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "239 N.C. 409", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627117 ], "year": 1954, "pin_cites": [ { "page": "413", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0409-01" ] }, { "cite": "463 S.E.2d 584", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "587", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 768", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918064 ], "year": 1995, "pin_cites": [ { "page": "771", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0768-01" ] }, { "cite": "376 S.E.2d 425", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "pin_cites": [ { "page": "427" } ], "opinion_index": 0 }, { "cite": "324 N.C. 63", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2488503 ], "year": 1989, "pin_cites": [ { "page": "66" } ], "opinion_index": 0, "case_paths": [ "/nc/324/0063-01" ] }, { "cite": "331 S.E.2d 738", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1985, "pin_cites": [ { "page": "739" }, { "page": "740", "parenthetical": "emphasis added" }, { "page": "740" } ], "opinion_index": 0 }, { "cite": "76 N.C. App. 115", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526718 ], "weight": 3, "year": 1985, "pin_cites": [ { "page": "117" }, { "page": "117" }, { "page": "117-18" } ], "opinion_index": 0, "case_paths": [ "/nc-app/76/0115-01" ] }, { "cite": "693 S.E.2d 705", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 2010, "pin_cites": [ { "page": "709" }, { "page": "708", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 45-21.16", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 7, "year": 2011, "pin_cites": [ { "page": "(d1)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)" }, { "page": "(d)(1)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 892, "char_count": 21564, "ocr_confidence": 0.748, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.14878917651183524 }, "sha256": "deacd1b4cec88fbb740f699e5ba8a249a61ccf7719f17b2469adea943c553313", "simhash": "1:8a3af46cde936018", "word_count": 3470 }, "last_updated": "2023-07-14T22:16:59.313771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges STEELMAN and GEER concur." ], "parties": [ "IN THE MATTER OF THE FORECLOSURE OF A LIEN BY Five Oaks Recreational Association, Inc., a North Carolina Corporation against, Martin J. Horn Owner" ], "opinions": [ { "text": "HUNTER, JR., Robert N., Judge.\nMartin J. Horn (\u201cRespondent\u201d) appeals from the trial court\u2019s amended order granting summary judgment in favor of Five Oaks Recreational Association, Inc. (\u201cPetitioner\u201d) and authorizing Petitioner to proceed with foreclosure of Respondent\u2019s property. After careful review, we affirm.\nI. Factual & Procedural Background\nPetitioner is a North Carolina non-profit corporation located in Durham. Petitioner maintains recreational facilities for the use and benefit of its members, which generally consist of property owners in the Five Oaks Community. Respondent owns property located at 4302 Pin Oak Drive in Durham\u2014within the Five Oaks Community\u2014and is a member of Petitioner. As a member, Respondent and his property are subject to the terms of Petitioner\u2019s Declaration of Covenants, Conditions, and Restrictions (\u201cthe Declaration\u201d) as recorded in Book 432, Page 306, of the Durham County Register of Deeds.\nPursuant to the Declaration, Respondent has agreed to pay dues, or \u201cassessments,\u201d to Petitioner to cover the costs of maintaining and operating Petitioner\u2019s recreational facilities. Article X Section 3 of the Declaration provides that the \u201cassessments, together with interest, costs, and reasonable attorney\u2019s fees for the collection thereof shall be a charge and lien upon the lot of the respective Owners thereof, and the same shall be a continuing lien upon the lot against which each such assessment is made.\u201d The Declaration further provides that if an assessment is not paid within thirty days of its due date, Petitioner has the power to \u201cforeclose the lien against the lot, and interest, costs, and reasonable attorney\u2019s fees of any such action for collection thereof shall be added to the amount of such assessment.\u201d\nPetitioner\u2019s records indicate that Respondent fell behind on his assessment payments in April 2009 and that he has maintained a past due balance ever since. On 13 August 2010, Petitioner notified Respondent by letter that Respondent owed $458.00 in unpaid assessments. Petitioner cautioned Respondent that it would exercise its power under the Declaration to file a claim of lien against Respondent\u2019s property\u2014and possibly institute foreclosure proceedings\u2014if Respondent failed to arrange for payment of his past due balance within fifteen days.\nPetitioner received no response from Respondent and retained counsel to assist in Petitioner\u2019s debt collection efforts. By letter dated 21 September 2010, Petitioner\u2019s counsel informed Respondent of his statutory obligation to pay Petitioner\u2019s attorney\u2019s fees incurred through collection of Respondent\u2019s debt in addition to the debt itself. Petitioner indicated that Respondent\u2019s debt, including attorney\u2019s fees, totaled $533.00, and, moreover, that any payments made by Respondent would be applied \u201cin the following order: (1) to any fines accrued upon [Respondent\u2019s] assessment account; (2) attorneys fees incurred in the collection of those fines or in the collection of [Respondent\u2019s] past due assessments; (3) costs, including administrative costs; (4) late fees; and (5) past due assessments.\u201d The letter directed Respondent to tender all payments through Petitioner\u2019s counsel.\nAs of 11 October 2010, Petitioner had not received a response from Respondent. Petitioner sent Respondent a copy of the claim of lien that it was in the process of filing against Respondent\u2019s property pursuant to its authority under the Declaration. Petitioner indicated the claim of lien was for $611.00 in past due assessments and $225.00 in attorney\u2019s fees for a total amount of $836.00. Petitioner filed the claim of lien against Respondent\u2019s property in Durham County District Court on 15 October 2010.\nOn 5 November 2010, Petitioner\u2019s counsel received a check from Respondent for $611.00. The check, as reflected in the record, bears a handwritten message on the \u201cMEMO\u201d line in the lower left-hand corner of the instrument. Although it is difficult to decipher the handwriting, Respondent asserts in his affidavit that the message reads \u201cfull payment.\u201d However, Brittany Van Zille, the office assistant who processed the check, states in her affidavit that the check \u201cwas not accompanied by any note or correspondence indicating it was for payment in full.\u201d Ms. Van Zille further states that she knows not to process checks designated \u201cpayment in full,\u201d and, even if she had noticed the message, she \u201cwould not have been able to tell that the writing therein indicated that it was for \u2018full payment.\u2019 \u201d\nBank records indicate that Petitioner\u2019s counsel indorsed and processed Respondent\u2019s check on 9 November 2010. That same day, Petitioner commenced foreclosure proceedings by filing a petition and notice of foreclosure hearing in Durham County Superior Court. The petition described Respondent\u2019s debt as comprised of $611.00 in past due assessments, $625.00 in attorney\u2019s fees, and $180.00 in court costs.\nOn 12 April 2011, a foreclosure hearing based upon foreclosure of the claim of lien was held before the Honorable Archie L. Smith, III, Clerk of Superior Court of Durham County. Respondent\u2014representing himself pro se\u2014asserted that the notation on the check and subsequent processing of the check by Petitioner\u2019s counsel constituted accord and satisfaction, thereby satisfying his debt and precluding foreclosure. The clerk of court disagreed, concluding as a matter of law \u201c[t]hat the tendered check did not constitute accord and satisfaction as it was illegible and insufficient to notify [Petitioner] that it was tendered as payment in full.\u201d The clerk of court authorized Petitioner to proceed with foreclosure and ordered Respondent to pay Petitioner\u2019s attorney\u2019s fees and court costs totaling $1,680.00. On 27 April 2011, Respondent appealed the clerk of court\u2019s order to Durham County Superior Court pursuant to N.C. Gen. Stat. \u00a7 45-21.16(d1) (2011).\nOn 10 May 2011, Petitioner filed a motion for summary judgment with the trial court. In support of its motion, Petitioner offered the affidavits of Ms. Van Zille and Petitioner\u2019s counsel, an affidavit of debt, a certified claim of lien, and a certified copy of the Declaration. Respondent countered by filing his own motion for summary judgment on 18 May 2011, offering his sworn affidavit in support of the motion.\nIn a summary judgment order entered 24 May 2011, the trial court found, inter alia, that the notation on the check was \u201cillegible,\u201d that there was no evidence of a dispute over the amount of the debt, and that the amount demanded by Petitioner for the debt owed was for a \u201csum certain.\u201d The trial court concluded there had not been accord and satisfaction as a matter of law because: (1) \u201cthe notation on the check was illegible and was therefore insufficient to notify [Petitioner] that it was tendered as payment in full,\u201d (2) \u201cthe debt was neither disputed nor unliquidated,\u201d and (3) \u201cthere was no \u2018meeting of the minds\u2019 and no agreement between [Respondent] and [Petitioner] to pay and accept less than the amount claimed.\u201d The trial court\u2019s order authorized Petitioner to proceed with foreclosure of Respondent\u2019s property, and, in addition, ordered Respondent to pay Petitioner\u2019s attorney\u2019s fees and court costs totaling $5,739.50. The trial court entered an amended order of summary judgment on 2 June 2011. The amended order omits the trial court\u2019s factual findings but is otherwise identical to the original summary judgment order. Respondent timely filed his notice of appeal from the 2 June 2011 order with this Court on 21 June 2011.\nII. Analysis\nChapter 47F of our General Statutes, entitled the \u201cNorth Carolina Planned Community Act,\u201d (\u201cthe Act\u201d) governs the operation of North Carolina homeowners associations such as Petitioner. See N.C. Gen. Stat. \u00a7 47F-1-102(a) (2011). We note the Act generally applies only to homeowners associations created on or after 1 January 1999, see id., and, according to the Declaration, Petitioner was created on or about 9 December 1975. However, some of the Act\u2019s provisions\u2014and the only provisions relevant to the matter sub judice\u2014apply regardless of the association\u2019s date of inception. See N.C. Gen. Stat. \u00a7 47F-1-102(c) (2011). Thus, the provisions of the Act cited herein control.\nWith respect to collection of delinquent assessments, the Act provides that \u201c[a]ny assessment levied against a lot remaining unpaid for a period of 30 days or longer shall constitute a lien on that lot when a claim of lien is filed of record in the office of the clerk of superior court of the county in which the lot is located.\u201d N.C. Gen. Stat. \u00a7 47F-3-116(a) (2011). Moreover, the Act vests the association holding the claim of lien with authority to \u201cforeclose the claim of lien in like manner as a mortgage on real estate under power of sale under Article 2A of Chapter 45 of the General Statutes.\u201d Id.\nN.C. Gen. Stat. \u00a7 45-21.16(d) delineates the procedure for a foreclosure hearing held before the clerk of court. See N.C. Gen. Stat. \u00a7 45-21.16(d) (2011). At the hearing, the party seeking foreclosure must establish four statutorily required elements: (1) a valid debt exists and the foreclosing party is the holder of the debt; (2) the debtor has defaulted on the debt; (3) the instrument evidencing the debt permits foreclosure; and (4) proper notice has been afforded to all entitled parties. See id.; In re Adams, _ N.C. App. _, _, 693 S.E.2d 705, 709 (2010). Due to the extra-judicial nature of these proceedings, which are \u201cmeant to \u2018function as a more expeditious and less expensive alternative to a foreclosure by action,\u2019 \u2018foreclosure under [N.C. Gen. Stat. \u00a7 45-21.16(d)] is not favored in the law, and its exercise will be watched with jealousy.\u2019 \u201d In re Adams, _ N.C. App. at _, 693 S.E.2d at 708 (citations omitted). The clerk of court\u2019s order authorizing or dismissing foreclosure is appealable to the superior court. N.C. Gen. Stat. \u00a7 45-21.16(d)(1) (2011). On appeal, the superior court reviews de novo the same four issues described supra. See id. The superior court\u2019s order authorizing Petitioner to proceed with foreclosure was a final judgment, and, therefore, this Court exercises jurisdiction over Respondent\u2019s appeal pursuant to N.C. Gen. Stat. \u00a7 7A-27(b) (2011).\nA. Standard of Review\nA motion for summary judgment is appropriately granted where \u201cthe 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) (2011). The moving party can establish it is entitled to judgment \u201cby proving that an essential element of the opposing party\u2019s claim is nonexistent, or by showing that the opposing party either cannot produce evidence to support an essential element of his or her claim or cannot surmount an affirmative defense which would bar the claim.\u201d Sanyo Elec., Inc. v. Albright Distrib. Co., 76 N.C. App. 115, 117, 331 S.E.2d 738, 739 (1985). On appeal, this Court must review the entire record, viewing the evidence in the light most favorable to the non-moving party. Collingwood v. G.E. Real Estate Equities, Inc., 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989).\nIn the instant case, the parties agree there are no issues of material fact and this matter is ripe for summary judgment. Respondent primarily contends the trial court erred by granting summary judgment in favor of Petitioner because the check tendered by Respondent and deposited by Petitioner constituted accord and satisfaction as a matter of law. Respondent raises the defense of accord and satisfaction in an attempt to negate the existence of a valid debt, thereby precluding Petitioner\u2019s foreclosure of its claim of lien against Respondent\u2019s property. For the following reasons, we disagree.\nB. Accord and Satisfaction\n\u201cAlthough the existence of accord and satisfaction is generally a question of fact, \u2018where the only reasonable inference is existence or non-existence, accord and satisfaction is a question of law and may be adjudicated by summary judgment when the essential facts are made clear of record.\u2019 \u201d Zanone v. RJR Nabisco, Inc., 120 N.C. App. 768, 771, 463 S.E.2d 584, 587 (1995) (citation omitted). Our Supreme Court has described the common law doctrine of accord and satisfaction as follows:\nAn accord and satisfaction is compounded of the two elements enumerated in the term. \u201cAn \u2018accord\u2019 is an agreement whereby one of the parties undertakes to give or perform, and the other to accept, in satisfaction of a claim, liquidated or in dispute, and arising either from contract or tort, something other than or different from what he is, or considers himself, entitled to; and a \u2018satisfaction\u2019 is the execution, or performance, of such an agreement.\u201d\nDobias v. White, 239 N.C. 409, 413, 80 S.E.2d 23, 27 (1954) (citation omitted). \u201cAgreements are reached by an offer by one party and an acceptance by the other. This is true even though the legal effect of the acceptance may not be understood.\u201d Prentzas v. Prentzas, 260 N.C. 101, 104, 131 S.E.2d 678, 681 (1963).\nRespondent asserts \u201cthe tendering of a check marked full payment is akin to an offer, it is an accord. When the check is accepted, cashed or negotiated, then the offer is accepted by law, the accord becomes an accord and satisfaction\u2014and the matter is closed and resolved.\u201d Respondent misconstrues the doctrine of accord and satisfaction and its applicability to the facts before this Court.\n\u201cWhen there is some indication on a check that it is tendered in full payment of a disputed claim, the cashing of the check is held to be an accord and satisfaction as a matter of law.\u201d Sanyo, 76 N.C. App. at 117, 331 S.E.2d at 740 (emphasis added). However, where there is \u201cno evidence or allegation of communication between plaintiff and defendant concerning a dispute over the account,\u201d nor \u201cevidence or allegation of negotiation or agreement between plaintiff and defendant concerning payment or acceptance of less than the full amount of the account,\u201d the defendant\u2019s notation on a check stating that the check is to be in \u201cfull payment\u201d of the debt owed does not constitute an accord and satisfaction. Fruit & Produce Packaging Co. v. Stepp, 15 N.C. App. 64, 68, 189 S.E.2d 536, 538 (1972). \u201c \u2018The fact that a remittance by check purporting to be \u201cin full\u201d is accepted and used does not result in an accord and satisfaction if the claim involved is liquidated and undisputed ....\u2019\u201d Id. (citation omitted).\nViewing the evidence in the light most favorable to Respondent, it does not establish the existence of a dispute concerning Respondent\u2019s debt. Respondent\u2019s debt, as detailed in Petitioner\u2019s letters, was based upon past due assessments owed by Respondent and the attorney\u2019s fees incurred by Petitioner in attempting to collect this debt from Respondent. Respondent did not reply to Petitioner\u2019s letters and gave no indication that he disputed the amount of Petitioner\u2019s claim. Without preface, Respondent \u201cdelivered a check\u201d to Petitioner\u2019s counsel purportedly marked \u201cfull payment.\u201d The check was not accompanied by a letter or other documentation expressing Respondent\u2019s dissatisfaction with the amount of the debt or explaining the meaning of the notation on the check. See Sanyo, 76 N.C. App. at 117-18, 331 S.E.2d at 740 (holding there was accord and satisfaction as a matter of law where debtor tendered full payment check with accompanying letter describing check as delivered \u201c \u2018in full, final and complete settlement of all amounts owed,\u2019 \u201d and \u201c \u2018[i]n the event you are not agreeable to this check constituting full, final and complete settlement of our account with you, please return this check forthwith\u2019 \u201d). There was no evidence of a discussion at any time between Respondent and Petitioner that Respondent\u2019s check was intended to cover Petitioner\u2019s claim in full. See Snow v. East, 96 N.C. App. 59, 62-63, 384 S.E.2d 689, 691 (1989) (holding no accord and satisfaction because there was no discussion between the parties that a check tendered as payment in full was intended to cover the entire debt owed). Absent some other evidence demonstrating negotiation or a dispute over the amount of the asserted debt, Respondent\u2019s notation on the check\u2019s \u201cMEMO\u201d line was not sufficient to constitute a dispute for purposes of accord and satisfaction. Thus, Petitioner was \u201c \u2018justified in treating the transaction as merely the act of an honest debtor remitting less than is due under a mistake as to the nature of the contract.\u2019 \u201d Fruit & Produce Packaging Co., 15 N.C. App. at 68, 189 S.E.2d at 538 (citation omitted).\nFurthermore, Respondent\u2019s reliance on Barber v. White, 46 N.C. App. 110, 264 S.E.2d 385 (1980) is misplaced. In Barber, the plaintiff entered into an agreement to paint the defendants house at an estimated cost of $2,700.00. Id. at 111, 264 S.E.2d at 385. The plaintiff completed the work and presented the defendants with \u201ca bill for $2,359.19, which defendants contested as too high.\" Id. (emphasis added). The defendants tendered a check to the plaintiff marked \u201cpainting in full\u201d for $1,813.19. Id. The plaintiff cashed the check and then demanded the balanced owed by the defendants. Id. This Court held that the \u201cPlaintiffs cashing of the check marked \u2018painting in full\u2019 established an accord and satisfaction as a matter of law.\u201d Id. at 113, 264 S.E.2d at 386.\nUnlike the defendants in Barber, Respondent did not attempt to negotiate or contest the amount of his debt. He simply dropped off an envelope with an enclosed check for an amount less than the amount due. Barber stands for the principle that cashing a check settles a disputed debt, and, as Respondent has failed to offer any evidence of a dispute, we find that case inapplicable to the case at bar.\nWe note the common law doctrine of accord and satisfaction has been codified in section 25-3-311 of our General Statutes as part of North Carolina\u2019s adoption of the Uniform Commercial Code. See N.C. Gen. Stat. \u00a7 25-3-311 (2011). However, section 25-3-311 applies only where the amount of the claim is \u201cunliquidated or subject to a bona fide dispute.\u201d See id. This Court has interpreted this requirement to mean that \u201cthe \u2018person against whom a claim is asserted\u2019 must prove, inter alia, that \u2018the amount of the claim was unliquidated or subject to a bona fide dispute\u2019 prior to submission of the instrument representing full and final payment. Hunter-McDonald, Inc. v. Edison Foard, Inc., 157 N.C. App. 560, 563, 579 S.E.2d 490, 492 (2003) (emphasis added); see also Futrelle v. Duke Univ., 127 N.C. App. 244, 249-50, 488 S.E.2d 635, 639 (1997) (\u201cThe requirement, that a dispute exist, is satisfied in that, prior to payment. . . the parties disputed what remedy, if any, plaintiff was entitled to receive.\u201d (emphasis added)). \u201cIt is not enough for defendant to demonstrate the parties presently disagree as to the amount due, but rather defendant must prove \u2018the amount of the claim was unliquidated or subject to a bona fide dispute[.]\u2019 \u201d Hunter-McDonald, Inc., 157 N.C. App. at 563, 579 S.E.2d at 492 (citation omitted) (alteration in original).\nAs discussed supra, Respondent failed to introduce evidence demonstrating the existence of a dispute at any time prior to tendering the check to Petitioner. This fact alone renders N.C. Gen. Stat. \u00a7 25-3-311 inapplicable to Respondent\u2019s accord and satisfaction defense; our common law analysis, supra, is dispositive. Respondent\u2019s remaining contentions on this issue are without merit. We hold that Respondent failed to establish accord and satisfaction as a matter of law, and the trial court did not err in granting summary judgment in favor of Petitioner.\nFor the foregoing reasons, the trial court\u2019s order is\nAffirmed.\nJudges STEELMAN and GEER concur.\n. It is unclear from the record whether Petitioner\u2019s counsel submitted the petition and notice of foreclosure hearing to the trial court prior to its receipt of Respondent\u2019s check.", "type": "majority", "author": "HUNTER, JR., Robert N., Judge." } ], "attorneys": [ "Hatch, Little, & Bunn, LLP, by Tina Frazier Pace and Justin R. Apple, for Petitioner-appellee.", "The Law Offices of Martin J. Horn, PLLC, by Martin J. Horn, for Respondent-appellant." ], "corrections": "", "head_matter": "IN THE MATTER OF THE FORECLOSURE OF A LIEN BY Five Oaks Recreational Association, Inc., a North Carolina Corporation against, Martin J. Horn Owner\nNo. COA11-1053\n(Filed 6 March 2012)\n1. Associations\u2014Planned Community Act\u2014effective date\nThe North Carolina Planned Community Act, which governs the operation of North Carolina homeowners associations, generally applies only to associations created on or after 1 January 1999, with some provisions applying regardless of when the association was created. Those provisions include foreclosure for delinquent assessments, the subject of this action. Moreover, the superior court order following a review de novo of the clerk of court\u2019s order authorizing foreclosure was a final judgment, so that the Court of Appeals had jurisdiction over the appeal.\n2. Accord and Satisfaction\u2014check marked full payment\u2014no evidence of disputed debt\nThe trial court did not err by granting summary judgment for petitioner in a foreclosure action where respondent raised the defense of accord and satisfaction based upon a check allegedly marked \u201cfull payment.\u201d A notation of \u201cfull payment\u201d did not constitute an accord and satisfaction when there was no evidence of a dispute over the debt.\nAppeal by Respondent from order entered 2 June 2011 by Judge Orlando F. Hudson, Jr. in Durham County Superior Court. Heard in the Court of Appeals 25 January 2012.\nHatch, Little, & Bunn, LLP, by Tina Frazier Pace and Justin R. Apple, for Petitioner-appellee.\nThe Law Offices of Martin J. Horn, PLLC, by Martin J. Horn, for Respondent-appellant." }, "file_name": "0320-01", "first_page_order": 330, "last_page_order": 339 }