{
  "id": 8554336,
  "name": "PHIL MECHANIC CONSTRUCTION CO. v. JOHN B. GIBSON and wife, URSULA GIBSON",
  "name_abbreviation": "Phil Mechanic Construction Co. v. Gibson",
  "decision_date": "1976-08-04",
  "docket_number": "No. 7628DC227",
  "first_page": "385",
  "last_page": "387",
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    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "name_long": "North Carolina",
    "name": "N.C."
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      "year": 1976,
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      "cite": "29 N.C. App. 78",
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      "reporter": "N.C. App.",
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        8554145
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      "year": 1976,
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        "/nc-app/29/0078-01"
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  "last_updated": "2023-07-14T18:42:34.327987+00:00",
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  "casebody": {
    "judges": [
      "Judges Morris and Vaughn concur."
    ],
    "parties": [
      "PHIL MECHANIC CONSTRUCTION CO. v. JOHN B. GIBSON and wife, URSULA GIBSON"
    ],
    "opinions": [
      {
        "text": "CLARK, Judge.\nDefendants admitted the execution of the contract as alleged by plaintiff, but in their further answer alleged that the box headed \u201cStatement of Transaction,\u201d which included interest and attorney fee provisions was left blank. Construing the defendants\u2019 answer with liberality, we find that defendants admit that they executed the written contract attached to their answer and designated \u201cExhibit B,\u201d which left blank the box designated \u201cStatement of Transaction,\u201d except for the blank following \u201cCash Price\u201d which was filled in with the figure \u201c$2,215.00.\u201d\nUnquestionably, summary judgment against the defendants and for the plaintiff in the principal amount of $2,215.00 was proper. However, since defendants denied in their answer that the contract provision relating to finance charges and attorneys\u2019 fees was filled in when they executed the contract, the pleadings raised genuine issues of material fact, and summary judgment under G.S. 1A-1, Rule 56(c) on these two issues should not have been rendered. There was nothing offered by plaintiff to show that it gave the defendants the notice of their obligation to pay attorney fees as required by G.S. 6-21.2(5).\nThe trial court properly refused to consider defendants\u2019 counterclaim for failure of the plaintiff to disclose the finance charge required by the Truth in Lending Act, 15 U.S.C. \u00a7 1638(a). In Enterprises, Inc. v. Neal, 29 N.C. App. 78, 223 S.E. 2d 831 (1976), this Court held that a claim for penalties under 15 U.S.C. \u00a7 1640(a) may not be raised as a counterclaim in the creditor\u2019s action for the unpaid balance on the debt.\nAffirmed in part and reversed in part and the cause is remanded.\nJudges Morris and Vaughn concur.",
        "type": "majority",
        "author": "CLARK, Judge."
      }
    ],
    "attorneys": [
      "Gray, Kimel & Connolly by David G. Gray, Jr., for plaintiff appellee.",
      "John I. Jay for defendant appellants."
    ],
    "corrections": "",
    "head_matter": "PHIL MECHANIC CONSTRUCTION CO. v. JOHN B. GIBSON and wife, URSULA GIBSON\nNo. 7628DC227\n(Filed 4 August 1976)\n1. Contracts \u00a7 27\u2014 summary judgment \u2014 principal amount \u2014 finance charge \u2014 counsel fees\nThe trial court in a contract action properly entered summary judgment for the plaintiff in the principal amount of $2,215.00 where defendants admitted that they executed a contract containing a \u201cCash Price\u201d of such amount, hut the court erred in granting plaintiff summary judgment for a finance charge and counsel fees allegedly provided for in the contract where defendants denied that contract provisions for finance charges and counsel fees were filled in when they signed the contract and defendants attached to their answer a contract in which such provisions were left blank.\n2. Pleadings \u00a7 11\u2014 action on debt \u2014 counterclaim under Truth in Lending Act\nA claim for penalties for failure of a creditor to disclose the finance charge as required by the Federal Truth in Lending Act, 15 U.S.C. \u00a7 1638(a), may not be raised as a counterclaim in the creditor\u2019s action for the unpaid balance on the debt.\nAppeal by defendants from Allen, Judge. Judgment entered 23 February 1976, District Court, Buncombe County. Heard in the Court of Appeals 11 June 1976.\nIn its complaint, plaintiff alleges that it entered into a written contract, attached to the complaint and designated \u201cExhibit A,\u201d to sell and install on their house steel siding for the sum of $3,196.20, that it had performed the contract, but that defendants had failed to pay the contract price.\nThe contract, \u201cExhibit A,\u201d contained a \u201cbox,\u201d headed \u201cStatement of Transaction,\u201d providing that the contract price of $3,196.20 included a finance charge of $981.20, computed at an annual interest rate of 14.95%, and that if purchasers defaulted they would be liable for reasonable attorneys\u2019 fees.\nIn their answer defendants first admitted the execution of the contract, \u201cExhibit A,\u201d then in their further answer alleged that \u201cExhibit A\u201d was not a true copy of the contract they executed because when they signed it the box headed \u201cStatement of Transaction\u201d was left blank, except for the space marked \u201cCash Price\u201d which was filled in with the figure $2,215.00,\u201d and defendants attached to this answer a contract designated \u201cExhibit B,\u201d with the box blank as alleged in their answer. Defendants prayed that they recover twice the amount of the finance charge for failure of plaintiff to disclose the amount and rate of the finance charge as required by the Truth in Lending Act.\nIn their answer to Interrogatories and Request for Admissions the defendants again denied the execution of the contract designated \u201cExhibit A,\u201d and admitted that they executed (1) a certificate acknowledging satisfactory completion of the work and (2) a \u201cRight to Rescind Receipt,\u201d which provided that they had the right to cancel the contract within three days from the date on which all disclosures under the Truth in Lending Act were given.\nPlaintiff moved for summary judgment, and the court entered judgment for plaintiff for $2,215.00, plus interest of $551.90 computed at the contract rate, and attorneys\u2019 fees of $415.04. Defendants appealed.\nGray, Kimel & Connolly by David G. Gray, Jr., for plaintiff appellee.\nJohn I. Jay for defendant appellants."
  },
  "file_name": "0385-01",
  "first_page_order": 413,
  "last_page_order": 415
}