{
  "id": 8551998,
  "name": "GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA, INC., Plaintiff v. JOSEPHINE CHAPMAN BALL, Defendant and Third-Party Plaintiff v. DURHAM LIFE INSURANCE CO., Third-Party Defendant",
  "name_abbreviation": "General Electric Credit Corp. of Georgia, Inc. v. Ball",
  "decision_date": "1979-04-03",
  "docket_number": "No. 7828SC449",
  "first_page": "586",
  "last_page": "591",
  "citations": [
    {
      "type": "official",
      "cite": "40 N.C. App. 586"
    }
  ],
  "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": [],
  "analysis": {
    "cardinality": 558,
    "char_count": 11043,
    "ocr_confidence": 0.822,
    "sha256": "b113af157f1cfbfa023ca53d7a2a519dbbbb92943a90461d4f8a1eb4f73c56d7",
    "simhash": "1:62dee4dd7f987a68",
    "word_count": 1775
  },
  "last_updated": "2023-07-14T20:01:10.825727+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Carlton concur."
    ],
    "parties": [
      "GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA, INC., Plaintiff v. JOSEPHINE CHAPMAN BALL, Defendant and Third-Party Plaintiff v. DURHAM LIFE INSURANCE CO., Third-Party Defendant"
    ],
    "opinions": [
      {
        "text": "HEDRICK, Judge.\nAt the outset, we note that this case involves a \u201cconsumer credit sale\u201d within the meaning of G.S. \u00a7 25A-2, and thus the provisions of Chapter 25A entitled \u201cRetail Installment Sales Act\u201d are applicable.\nThe provisions of G.S. \u00a7 25A-25(b) in effect when the transactions giving rise to this case occurred, are as follows:\n(b) In a consumer credit sale, a buyer may assert against the seller, assignee of the seller, or other holder of the instrument or instruments of indebtedness, any defenses available against the original seller, and the buyer may not waive these defenses in connection with a consumer credit sale transaction, except that in a consumer credit sale of personal property, the buyer shall be considered to have waived his defenses against an assignee of the seller who acquires the instrument or instruments of indebtedness in good faith and for value, if the buyer, following delivery of the property and after receiving from the assignee separate written notice of the waiver and the assignment containing the name and address of the assignee, fails for 30 days to notify the assignee of any defense against the seller; provided, however, a buyer may not waive defenses for fraud in the inducement or for failure of consideration.\nWith regard to the assignment in the present case, the retail installment contract contains the following printed form provisions at the top of the first page:\n\u201cNOTE: It is anticipated that this contract, when fully completed and signed, will be submitted to General Electric Credit Corporation of Georgia; 88 Johnson Ferry Road, Atlanta, Georgia 30324 (GECC), or its local branch office for purchase and, if approved, that it will be assigned to GECC.\u201d\nAt the bottom of the first page, next to the buyer\u2019s signatures, the contract states: \u201cACCEPTED: The foregoing contract is hereby assigned under the terms of the Assignment on the reverse side. United Mobile Homes of America, Inc. (seller).\u201d The signature of James L. Cavenaugh, as Treasurer of United Mobile Homes, appears beneath the above provision. The reverse side of the contract contains the following provision: \u201cIf Seller assigns this agreement, he shall not be assignee\u2019s agent for any purpose. Buyer agrees that acceptance of an assignment of this contract shall not impose upon assignee any obligation or any liability for breach of this contract.\u201d\nThe recital in the consumer credit sales contract that the assignee shall not be responsible to the buyer for any breach of the contract is clearly superceded by the provisions of G.S. \u00a7 25A-25(b). There is nothing in this record to establish that the assignee gave the buyer the notice required in G.S. \u00a7 25A-25(b) so as to come under the exception contained therein. Thus, the evidence does not establish that defendant waived her right to assert against the plaintiff\u2019s claim any defenses that she could assert against the seller. Indeed, the defendant has attempted to assert against plaintiff\u2019s claim seller\u2019s breach of the contract with respect to credit life insurance. At this stage of the proceedings, we are unable to forecast what course the case will take when the evidence regarding the buyer\u2019s defenses is more fully developed and is considered in light of the legal principles set out in G.S. \u00a7 25A-25(b). From this record, however, we are unable to say that the plaintiff, as the movant for summary judgment, has met its burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law.\nReversed and remanded..\nJudges Parker and Carlton concur.",
        "type": "majority",
        "author": "HEDRICK, Judge."
      }
    ],
    "attorneys": [
      "McLean, Leake, Taiman, Stevenson & Parker, by Joel B. Stevenson, for the defendant appellant.",
      "Richard M. Pearman, Jr., for plaintiff appellee."
    ],
    "corrections": "",
    "head_matter": "GENERAL ELECTRIC CREDIT CORPORATION OF GEORGIA, INC., Plaintiff v. JOSEPHINE CHAPMAN BALL, Defendant and Third-Party Plaintiff v. DURHAM LIFE INSURANCE CO., Third-Party Defendant\nNo. 7828SC449\n(Filed 3 April 1979)\nUniform Commercial Code \u00a7 22\u2014 sale of mobile home \u2014 action by assignee \u2014 defenses against original seller not waived\nIn an action by the assignee of a seller of a mobile home to recover the balance allegedly remaining on a retail installment sales contract, the trial court erred in entering summary judgment for plaintiff since the recital in the consumer credit sales contract that the assignee would not be responsible to the buyer for any breach of the contract was clearly superceded by the provisions of G.S. 25A-25(b), part of the Retail Installment Sales Act, which provided that a buyer could assert against an assignee of seller any defenses available against the original seller; there was nothing in the record to establish that the assignee gave the buyer the notice required in G.S. 25A-25(b) so as to come under the exception contained therein; and the evidence thus did not establish that defendant waived her right to assert against the plaintiff\u2019s claim her defense of breach of the contract by the seller with respect to credit life insurance.\nAPPEAL by defendant from Thornburg, Judge. Judgment entered 15 November 1977 in Superior Court, BUNCOMBE County. Heard in the Court of Appeals on 27 February 1979.\nThis is a civil action instituted on 16 January 1976 wherein plaintiff as the assignee of United Mobile Homes of America, Inc., a retail seller of mobile homes, seeks to recover $20,614.50, the amount allegedly remaining on a retail installment sales contract for the sale of a mobile home after defendant ceased making payments on the contract. The defendant answered, denying the material allegations of the complaint, and alleging as a \u201cfurther answer and defense\u201d that at the time defendant purchased the mobile home on 30 April 1974, she \u201cexecuted a Retail Installment Contract Vehicle Security Agreement, said Contract including a charge in the amount of $1,087.50 for Credit Life Insurance payable on the death of Defendant\u2019s husband;\u201d that on 15 March 1975, defendant\u2019s husband and co-signer of the retail installment contract died, and that she has made demand upon the plaintiff for a title to the mobile home but that plaintiff has refused to give her the title.\nOn 11 May 1976, plaintiff, pursuant to G.S. \u00a7 1A-1, Rule 56, moved for summary judgment. In support of its motion, plaintiff offered into evidence the retail installment sales contract, various exhibits, and defendant\u2019s answers to interrogatories, and requests for admission. In opposition to the motion for summary judgment, defendant offered affidavits and plaintiff\u2019s answers to interrogatories. All of these materials offered in support of and in opposition to the motion tended to show the following:\nOn 30 April 1974, the defendant accompanied by her husband, Leonard Lee Ball, his mother, and his brother, went to the trailer lot of United Mobile Homes for the purpose of buying a mobile home. During the negotiations for the purchase of a mobile home, the defendant\u2019s husband related to the salesman \u201ccertain facts surrounding his heart condition and stated that under no circumstances would they purchase a mobile home unless credit life insurance was available.\u201d The salesman responded that \u201ccredit life insurance was available and had been approved.\u201d The defendant and her husband, relying \u201cupon these further assurances, particularly the assurances that credit life insurance was now in full force and effect\u201d executed the sales contract.\nThe contract contained a cash price for the mobile home of $10,536.60, and the defendant made a cash down payment of $2,000.00. A charge of $1,072.75 for property insurance and $1,087.50 for credit life insurance was included, bringing the total amount financed to $10,696.85. A finance charge of $11,444.65 was added, making the total of the payments required under the contract $22,141.50.\nWith regard to insurance coverage, the contract contained the following provisions:\n4. Other Charges\nA. Insurance Charges (Note: Coverage Expiration Date expires on date shown under \u201cEx- (mo, day, year) piration Date\u201d. No coverage unless box is checked and cost is included in Total Other Charges).\n_ 4/30/81 761.25 4/30/81 70.00 4/30/81 241.50 4/30/81 (1) Property Insurance X Fire, Theft and Combined additional coverage. X or Comprehensive . _ Mobile Homeowners Coverage . _ Vendor\u2019s Single Interest Protection . (2) X_ $3,000 . (3) Total Property Insurance (1) plus (2). . . $1,072.75 (4) Credit Life* . . . $1,087.50 5/30/86\n*Credit Life Insurance Option: The Buyer whose signature appears in this box elects decreasing term life insurance on the life of the person designated as the proposed insured (initial coverage in the amount of the Total Payments hereunder or, if less, in the amount of $ .... in either instance in proportion with the indebtedness hereunder). Buyer understands and acknowledges that such insurance was not required as a condition of the extension of credit by the Seller and Buyer\u2019s decision to purchase such insurance was voluntarily made after the disclosure of its cost of $1,087.50 for the term shown below.\nPerson designated AS PROPOSED INSURED Leonard Lee Ball AGE 36 Date 4/30/74 Signature of Buyer Leonard Lee Ball\nThe retail installment contract was thereafter assigned to the plaintiff, and when it accepted assignment of the contract, the plaintiff paid $1,087.50 to Durham Life Insurance Company, which represented the premium for credit life insurance for defendant\u2019s husband. The plaintiff \u201chas received a refund of $1,087.50 and is presently holding the same for the benefit of the defendant.\u201d\nOn 29 August 1974, United Mobile Homes sent a letter to the defendant\u2019s husband, which stated in pertinent part:\nDear Mr. Ball:\nThis letter is to confirm our telephone conversation of August 1974, at which time I informed you of the following:\n1. Due to the reason of your disability (heart condition) Credit Life Insurance coverage cannot be written.\n2. The premium of $1,087.50 charged to you on the conditional sales contract is being credited to your account with General Electric Credit Corp. This does not release you from your monthly payment obligation; it simply means that your contract will pay out early, providing you maintain a current payment status.\nMr. Ball, in order to keep the contract intact, I would appreciate your indication of acknowledgement and acceptance of the above by signing your name on the dotted line.\nPlaintiff requested that defendant admit that the signature which appeared on the letter was that of her husband. Defendant responded that she was \u201cnot qualified to express an expert opinion as to the genuineness of the purported signature of Leonard Lee Ball\u201d appearing on the letter. The defendant did not know that her husband had mailed this letter to United Mobile Homes.\nAfter a hearing on plaintiff\u2019s motion, the court entered summary judgment on 15 November 1977 in favor of the plaintiff \u201cin the amount of $12,632.02 which represents the payoff to the plaintiff after all the applicable credits have been made on behalf of the defendant.\u201d Defendant appealed.\nMcLean, Leake, Taiman, Stevenson & Parker, by Joel B. Stevenson, for the defendant appellant.\nRichard M. Pearman, Jr., for plaintiff appellee."
  },
  "file_name": "0586-01",
  "first_page_order": 614,
  "last_page_order": 619
}
