James B. Taylor Family Ltd. P'ship v. Bank of Granite

An unpublished opinion of the North Carolina Court of Appeals does not constitute

controlling legal authority. Citation is disfavored, but may be permitted in

accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of

A p p e l l a t e P r o c e d u r e .

NO. COA13-550

NORTH CAROLINA COURT OF APPEALS

Filed: 17 June 2014

JAMES B. TAYLOR FAMILY LIMITED

PARTNERSHIP, JAMES B. TAYLOR, and

MARY ANN TAYLOR,

Plaintiffs,

v. Caldwell County

No. 12-CVS-1041

BANK OF GRANITE,1

Defendant.

Appeal by Plaintiffs from Order entered 20 December 2012 by

Judge H. William Constangy, Jr., in Caldwell County Superior

Court. Heard in the Court of Appeals 9 October 2013.

Law Offices of Matthew K. Rogers, PLLC, by Matthew K.

Rogers, for Plaintiffs.

Moore & Van Allen PLLC, by Scott M. Tyler, Joshua D.

Lanning, and Christopher D. Tomlinson, for Defendant.

1

The trial court’s 20 December 2012 order lists Defendant as

“BANK OF GRANITE.” On 28 June 2013, however, Defendant moved

this Court for an order substituting “CommunityOne Bank, N.A.”

for Bank of Granite because CommunityOne Bank, N.A. is the

surviving entity of a merger with Bank of Granite. We granted

that motion on 15 October 2013. Therefore, we list the original

party name in the caption, pursuant to the custom and practice

of this Court, and use the name of the substituted party

elsewhere in this opinion.

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STEPHENS, Judge.

Procedural History and Factual Background

This case arises from proceedings surrounding the 14

September 2012 foreclosure sale of three properties owned by

Plaintiff James B. Taylor Family Limited Partnership (“FLP”),

the borrower. A hearing by the Clerk of Superior Court to

determine whether to authorize foreclosure was set for 8 August

2012. On 7 August 2012, Plaintiffs James B. Taylor (“Mr.

Taylor”), Mary Ann Taylor, and FLP filed suit against Defendant

Bank of Granite Association, now CommunityOne Bank, N.A.

(“Defendant”), and alleged the following:

Prior to 1994, Mr. Taylor owned and operated a construction

business. Plaintiffs received loans from Defendant in 1994 and

1995 amounting to $1,697,061.51 for the construction of Property

1. Defendant loaned Plaintiffs $1,489,065 on 23 October 1996 for

the construction of Property 2 and the purchase of the

surrounding land. These loans were consolidated on 23 November

1998 into a $3,100,000 note. Full payment on the 1998 note was

due by 3 December 2013.

Defendant loaned Plaintiffs an additional $3,500,000 on 16

February 2000 in order to build and lease Property 3, a facility

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for use by Broyhill Furniture. The 2000 note was due at the end

of a twenty-year term. “The 2000 [note] was contingent on and

relied on income received relating to the Broyhill [twenty-year]

lease.”2 That same day, Plaintiffs signed a guaranty agreement,

promising to be liable on the 2000 note. “The [g]uaranty

[a]greement was a part of, conditioned on[,] and dependent on

the 2000 [note] and lease terms.”3 Defendant loaned Plaintiffs

$1,200,000 on 18 October 2000 so that they could buy and rent

the property adjacent to Property 2.

One year later, on 4 October 2001, the parties decided to

split the loan relating to Property 1 and Property 2. Therefore,

Plaintiffs signed a $2,350,000 note on Property 1 and a guaranty

agreement. Plaintiffs signed a $2,500,000 note on Property 2 and

a guaranty agreement. Both notes were set to mature on 4 October

2006. Plaintiffs allege that they signed both guaranty

2

Though Plaintiffs allege that payment on the 2000 note was

“contingent on” the receipt of income from Property 3, an

examination of the note, attached to Plaintiffs’ complaint as

Exhibit 3, indicates that “the entire remaining indebtedness”

was required to be paid by 15 December 2020. By its terms, the

2000 note states that Plaintiffs were not required to make

payments during the period leading up to 14 January 2011 unless

they secured a tenant. After that date, however, Plaintiffs were

required begin repayment whether they procured a tenant or not.

3

A review of the attached agreement does not support this

allegation.

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agreements pursuant to promises by Defendant that rent payments

for the respective properties would be used to pay the loans.

In September of 2005, Plaintiffs became unable to make

payments on the notes for Properties 1 and 2 using the rent

received from their tenants. When Plaintiffs informed Defendant

of this fact, Plaintiffs allege that Defendant “acknowledged”

the notes “were reliant on sufficient tenant rental income to

pay principal and interest.” Plaintiffs further allege that

Defendant “expressly waived Plaintiffs[’] default for [the

notes].” The parties then orally modified their agreement “so

that Plaintiff[s] would pay interest only when there were not

sufficient tenants in the relevant property, but when there were

sufficient tenants, Plaintiff[s] would make principal payments

as well as interest.”

Plaintiffs accumulated “sufficient tenant income” to make

payments on the principal by October of 2006, when the notes

were set to mature by their written terms. Nonetheless,

Plaintiffs “understood that the term of both the loans . . . was

for so long as it took Plaintiff[s] to pay off the loans

according to the rental[-]tenant[-]occupancy formula agreed with

[Defendant].” (Emphasis added).

56. At all times, [Defendant] was aware of

the lease terms and the “spread” between the

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money Plaintiff[s] received in rental income

from leases and the money required to pay

the principal of the loans back.

57. [Defendant] loaned money based on a

formula allowing Plaintiff[s] to profit from

leases with reference to the terms of the

leases for the [p]roperties.

The complaint describes a number of ways in which Defendant was

allegedly aware of Plaintiffs’ financial condition.

Defendant sought to sell the three loans in October of 2008

for 50% of the amount owed by Plaintiffs. That same month,

Defendant “demanded that Plaintiff[s] repay all loans relating

to Property 1, Property 2[,] or Property 3 immediately . . . .”

Alternatively, Defendant “demanded” that Plaintiffs “consolidate

the loans into a single note with [a] much shorter term.”

Defendant gave Plaintiffs six weeks to decide. When Plaintiffs

objected to these “demands” as “not right” and accused Defendant

of “strong-arming” them, one of Defendant’s vice presidents

agreed, but said the matter was out of his control. Believing

they had no other “practical choice,” Plaintiffs agreed to the

consolidation. Plaintiffs signed the consolidated note and a

personal guaranty in November of 2008.

In 2011, the vice president informed Plaintiffs that

Defendant had tried to sell the loans at 50% of the amount owed,

but was unable to find a buyer. “[The vice president]

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represented to [Plaintiffs] that [Defendant] intended to sell

the loans at a discount, but intended to continue to collect the

full amount of the loan, thereby reaping profits on the loans.”

In November of 2011, Plaintiffs met with Defendant “to discuss

extending the term of the [consolidated loan] or paying off the

[consolidated loan] at a discount.” An agent for Defendant

agreed to renew the note for another three years and told

Plaintiffs to contact a different agent “to discuss potentially

paying off the [consolidated loan] for a discount.”

Plaintiffs called the different agent and asked for a 50%

discount because Defendant had allegedly offered to sell the

loans at that rate. The different agent denied having ever made

such an attempt and declined to allow Plaintiffs to pay off the

loans at a discount. Plaintiffs contacted the original agent

about renewing the loan. The original agent failed to express

concern or doubts about the process and did not provide a date

for completion. “At that point, Plaintiff[s] believed and [were]

led to believe[] that Defendant renewed the loan but . . . was

working on documents reflecting the renewal.” Accordingly,

Plaintiffs “understood [that] . . . no payments should be made

until the renewal documents were completed.”

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Defendant told Plaintiffs that it needed to have “‘current

appraisals’ before the loan renewal could be formally

documented.” Defendant sought to have Plaintiffs pay for an

appraisal, and they did. In November of 2011, the original agent

informed Plaintiffs that “it was only a matter of time . . .”

before the paperwork was completed. In December, the agent

“promised that the loan documents would be completed” later that

month.

On 27 December 2011, the agent presented Plaintiffs with

the renewal documents and “told Plaintiff[s] that [they would

have to] pay [approximately] $100,000[] in interest accruing

from [the previous month] before [Defendant] would provide any

loan extension or renew the loan.” The documents were only open

for acceptance on that day, and Plaintiffs accused Defendant of

“punishing Plaintiffs for delays” by presenting renewal

documents that were only valid for one day. The parties did not

agree to renewal. The next day Defendant sent Plaintiffs a

letter “demand[ing] Plaintiff[s] turn[ ]over rents and

threaten[ing] foreclosure . . . .” Defendant also notified the

tenants that they were required to pay rent directly to

Defendant.

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The following month, January of 2012, a third agent for

Defendant appraised the value of Property 1 and informed

Plaintiffs that Defendant would “release” the property if

Plaintiffs could sell it for $1,000,000. This new agent informed

Plaintiffs that the rent on the remaining properties would be

sufficient to pay off the note in nine years. Defendant sent

Plaintiffs a forbearance sheet in February of 2012, which

extended the loan through March of 2012. Pursuant to the third

agent’s statements, Plaintiffs were expecting to receive a nine-

year extension.

In March of 2012, Defendant allegedly informed Plaintiffs

for the first time “that the terms of the [consolidated note]

would not be extended for at least three years and that the

interest rate would not be reduced. . . . Plaintiff[s] submitted

a loan commitment for $3,000,000 to Defendant . . . and offered

[that commitment] to pay off [Defendant] in full.”4 Defendant

declined this offer and initiated foreclosure proceedings.

Given these allegations, Plaintiffs asserted causes of

action against Defendant for (1) breach of the covenant of good

faith and fair dealing, (2) economic duress and coercion, (3)

fraud, (4) tortious interference with contract, and (5) unfair

4

The principal owed on the consolidated note is $6,921,994.38.

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and deceptive trade practices. Accordingly, Plaintiffs requested

relief in the form of an injunction preventing the foreclosure

sale, compensatory damages, punitive damages, treble damages,

costs, and attorneys’ fees. Defendant moved to dismiss

Plaintiffs’ claims under Rule 12(b)(6) of the North Carolina

Rules of Civil Procedure on 8 October 2012. In its motion,

Defendant asserted that the clerk of court entered an order

authorizing the foreclosure sale on 8 August 2012 and denied

Plaintiffs’ motion for a preliminary injunction. According to

Defendant, the foreclosure sale went forward on 14 September

2012, and Plaintiffs’ properties were sold that day. The matter

was heard on 3 December 2012, and the trial court entered an

order granting Defendant’s motion on 27 December 2012.

Plaintiffs appealed that order on 17 January 2013.

Approximately ten months after the trial court’s order, on

23 October 2013, Plaintiffs filed motions for relief under Rule

60(b) of the North Carolina Rules of Civil Procedure and to

amend their complaint under Rule 15. Plaintiffs notified this

Court of their motions, and we held their appeal in abeyance

pending an order by the trial court. James B. Taylor Family Ltd.

P’ship v. Bank of Granite, No. 13-550 (N.C. Ct. App. 5 December

2013), available at

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http://appellate.nccourts.org/orders.php?t=&court=2&id=283136&pd

f=1&a=0&docket=1&dev=1. Plaintiffs made the following additional

allegations in their motions:

The trial court entered a temporary restraining order

(“TRO”) on 16 August 2012, nine days after Plaintiffs filed

their complaint. “Despite the [TRO], the substitute trustee

advertised the foreclosure sale . . . ,” which was set to occur

on 7 September 2012. Plaintiffs sought discovery from Defendants

on 22 August 2012, but Defendant did not comply with those

requests. On 14 September 2012, Defendant purchased the three

properties for less than the amount owed by Plaintiffs and

transferred title to three affiliated limited liability

companies “without notice to Plaintiffs.” During this process,

Plaintiffs spoke to the vice president, who was no longer

affiliated with Defendant. He informed Plaintiffs that

information relating to the loans was located in his files with

Defendant.

According to Plaintiffs, Defendant had collected “at least

$517,602[] in rent from tenants [on the properties] after August

8, 2012 until the date of [the m]otion.” Property 3 was later

sold to a third party “for $275,000 more than the ‘credit bid’

for [that property].”

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16. On October 16, 2013[ Mr.] Taylor

realized that discussions and written

correspondence between [Plaintiffs] and

[Defendant] in October 2010 through January

2011 evidence that Plaintiffs did not ratify

the [c]onsolidated [l]oan . . . and [that

Plaintiffs] effectively told [Defendant that

they] continued to believe the properties

were subject to independent loan value

calculations.

In addition, Defendant brought suit against Plaintiffs on 27

September 2013 to recover the deficiency on the consolidated

note and for “purported fraudulent conveyances” made by

Plaintiffs, but “intentionally withheld service of process on

Plaintiffs . . . .”

Plaintiffs’ motion was heard on 2 December 2013. Two weeks

later, on 16 December 2013, Plaintiffs notified this Court that

the trial court intended to deny their motion. The trial court

entered its written decision on 18 December 2013, making the

following pertinent conclusions:

8. There is no newly discovered evidence

(not otherwise available to Plaintiffs prior

to December 3, 2012) pursuant to Rule

60(b)(2) that is relevant to any issue

raised by Plaintiffs’ original [c]omplaint.

9. Additionally, Plaintiffs fail to submit

sufficient reasons to justify relief . . .

pursuant to Rule 60(b)(1), 60(b)(3),

60(b)(6) or otherwise under Rule 60 of the

North Carolina Rules of Civil Procedure.

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As a result, the trial court stated that “if there were

continuing jurisdiction over [the] matter . . . , it would deny

Plaintiffs’ Rule 60 [m]otion for [r]elief and would deny as moot

Plaintiffs’ [m]otion to [a]mend under Rule 15.” Following that

decision, we issued an order stating that further appeal was

unnecessary because “[j]urisdiction remains in this Court.”

James B. Taylor Family Ltd. P’ship v. Bank of Granite, No. 13-

550 (N.C. Ct. App. 15 January 2014), available at

http://appellate.nc

courts.org/orders.php?t=&court=2&id=286166&pdf=1&a=0&docket=1&de

v=1. Accordingly, we directed the parties to file a supplemental

record and supplemental briefs. Id. The supplemental record was

filed on 4 February 2014. Plaintiffs and Defendant filed their

supplemental briefs on 19 February and 3 March 2014,

respectively.

Discussion

On appeal, Plaintiffs contend that the trial court erred in

granting Defendant’s motion to dismiss under Rule 12(b)(6) for

failure to state a claim. Alternatively, Plaintiffs assert that

relief from the trial court’s order should be awarded pursuant

to Rule 60(b). We affirm the trial court’s order granting

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Defendant’s motion to dismiss and decline to grant relief

pursuant to Rule 60(b).

I. Rule 12(b)(6)

The motion to dismiss under [Rule]

12(b)(6) tests the legal sufficiency of the

complaint. In ruling on the motion the

allegations of the complaint must be viewed

as admitted, and on that basis the court

must determine as a matter of law whether

the allegations state a claim for which

relief may be granted.

Stanback v. Stanback, 297 N.C. 181, 185, 254 S.E.2d 611, 615

(1979) (citations omitted). “This Court must conduct a de novo

review of the pleadings to determine their legal sufficiency and

to determine whether the trial court’s ruling on the motion to

dismiss was correct.” Leary v. N.C. Forest Prods., Inc., 157

N.C. App. 396, 400, 580 S.E.2d 1, 4, affirmed per curiam, 357

N.C. 567, 597 S.E.2d 673 (2003).

In their first argument on appeal, Plaintiffs contend that

the trial court erred in granting Defendant’s motion to dismiss

because they properly stated claims for: (1) the following

“equitable defenses and equitable claims [for] relief” (a)

waiver, (b) modification, (c) ratification, (d) lack of

consideration, (e) over-reaching and unfair bargaining, (f)

economic duress, (g) fraud and estoppel, and (h) unfair trade

practices; (2) breach of the implied covenant of good faith and

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fair dealing; (3) economic duress; (4) misrepresentation and

fraud; (5) tortious interference with contract; and (6) unfair

and deceptive trade practices. Plaintiffs also assert that

discovery would reveal any missing elements of their claims and

argue that granting the motion without discovery is unfairly

prejudicial. We disagree.

(1) Waiver, Modification, Ratification, Lack of

Consideration, Over-Reaching and Unfair

Bargaining, Economic Duress, Fraud and Estoppel,

and Unfair Trade Practices

Plaintiffs assert that their complaint properly stated the

“equitable defenses and equitable claims [for] relief” listed

above.5 For support, Plaintiffs cite to various paragraphs in

their complaint and argue that “[Defendant’s] representations

and actions in 2005 and [Defendant] accepting payments for more

than 3 years thereafter are sufficient to establish [all of

these claims].” Plaintiffs further assert that the consolidated

loan “is the result of egregious tortious conduct and cannot be

legally enforced” and claim that they “understood the parties

5

As noted above, Plaintiffs only explicitly list (1) breach of

the covenant of good faith and fair dealing, (2) economic duress

and coercion, (3) fraud, (4) tortious interference with

contract, and (5) unfair and deceptive trade practices in their

complaint. Plaintiffs’ argument on appeal indicates that they

believe these other causes of action were impliedly stated in

the allegations of the complaint.

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were operating pursuant to modified loans and a course of

dealings developed over many years.” (Emphasis added). The only

legal authority Plaintiffs provide are quotations regarding the

remedies of specific performance and reformation of contracts.

This argument lacks merit.

As a preliminary matter, we note that Plaintiffs’ first

argument consists almost entirely of listing the eight different

“defenses and claims” that they believe were properly stated in

their complaint and citing the paragraphs that they believe

support those claims. Plaintiffs offer no specific reasons or

arguments for these claims and provide no citations in their

brief to the relevant legal standards. Indeed, Plaintiffs’

claims are not even explicitly included in their complaint. This

practice makes it difficult to properly address Plaintiffs’

arguments on appeal and treads dangerously close to abandonment.

See N.C.R. App. P. 28(a); see also United Leasing Corp. v.

Miller, 45 N.C. App. 400, 403, 263 S.E.2d 313, 316 (1980)

(“Questions raised . . . in appeals from trial tribunals but not

then presented and discussed in a party’s brief are deemed

abandoned.”) (citations omitted). Nonetheless, we elect to

review Plaintiffs’ arguments on the merits and conclude that

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they have failed to state any of the alleged “defenses and

claims” described above.

Waiver is an equitable defense to foreclosure that may be

present when the lender accepts late payments on a loan. See

Meehan v. Cable, 127 N.C. App. 336, 340, 489 S.E.2d 440, 444

(1997) (citations omitted). As Defendant notes in its brief, the

paragraphs cited by Plaintiffs as evidence of waiver only apply

to the notes on Property 1 and Property 2 from October of 2001.

“[S]uch allegations have no bearing on the [consolidated n]ote —

the loan which was secured by the properties foreclosed upon by

[Defendant].” Indeed, the paragraphs of the complaint relied

upon by Plaintiffs specifically state that “[Defendant] refused

to accept anything less than the full amount of the . . .

[c]onsolidated [n]ote as satisfaction . . . .” There is no

allegation that Defendant accepted late payments on the

consolidated note. Therefore, Plaintiffs’ argument as it

pertains to waiver is overruled.

“Modification” is not a stand-alone equitable doctrine.

What Plaintiffs appear to mean by the use of this term is that

the consolidated note was amended in a manner that prevented

foreclosure. However, as Defendant observes, the cited

paragraphs of Plaintiffs’ complaint fail to reference the

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consolidated note, which is the relevant instrument in this

case. Therefore, Plaintiffs’ argument as it pertains to

“modification” is overruled.

“Ratification” refers to the idea that a principal may be

held liable for the actions of an individual who lacks authority

to act as an agent, but nonetheless “makes a contract as an

agent for [the principal]” when the principal, “upon discovery

of the facts, . . . ratif[ies] the contract . . . .” Patterson

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 266 N.C. 489,

492, 146 S.E.2d 390, 393 (1966) (citations omitted). Plaintiffs

assert that their complaint reveals Defendant ratified the

“rent-spread” agreement, i.e., the alleged agreement that

Defendant would only accept payments to the extent they were

covered by rental payments made to Plaintiffs by their tenants.

Again, we note that these allegations refer to the 2001 notes on

Properties 1 and 2, not the consolidated note. Even assuming

those notes were modified and such modification was ratified by

Defendant, it is not relevant to Plaintiffs’ complaint or this

appeal. Therefore, Plaintiffs’ argument as it pertains to

“ratification” is overruled.

“Lack of consideration” refers to the principle that a

contract must be supported by valuable consideration in order to

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be enforceable. See, e.g., Brown v. Ray, 32 N.C. (10 Ired.) 72,

73 (1849) (“[T]here must be a consideration to support a promise

. . . .”). The cited paragraphs of Plaintiffs’ complaint

describe the process of consolidating the loans on properties 1

and 2, but do not allege that the parties’ agreement lacked

consideration. In addition, “[i]t is well settled that a loan is

sufficient consideration to support the obligation of a

promissory note . . . .” In re Blue Ridge Holdings Ltd. P’ship,

129 N.C. App. 534, 537–38, 500 S.E.2d 446, 449 (1998) (citation

omitted); see also Smith v. Allison, 83 N.C. App. 232, 234, 349

S.E.2d 623, 624 (1986) (deeming evidence that the promisee

intended to lend the corporation money and that funds were

advanced to the corporation sufficient to show the existence of

consideration to support promissory notes), disc. review denied,

319 N.C. 406, 354 S.E.2d 718 (1987). Therefore, Plaintiffs’

argument as it pertains to lack of consideration for the

consolidated note is overruled.

“Over-reaching” and “unfair bargaining” are not documented

equitable doctrines in North Carolina. As Defendant notes in its

brief, however, “Plaintiffs appear to be using these terms as

synonyms for their claims of duress and breach of the covenant

of good faith and fair dealing.” Plaintiffs offer no argument

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regarding these particular terms, but to the extent they deal

with their other causes of action, those arguments are addressed

below.

Similarly, Plaintiffs’ remaining “defenses and claims” —

economic duress, fraud and estoppel, and unfair trade practices

— are synonymous with their named causes of action. Therefore,

we address those claims below.

(2) Implied Covenant of Good Faith and Fair Dealing

In their second argument on appeal, Plaintiffs contend that

Defendant breached an implied covenant of good faith and fair

dealing between the parties because the parties had developed a

“‘small town’ banking relationship,” which resulted in

additional, unwritten terms to the loans. Specifically,

Plaintiffs assert their “belie[f]” that “payments [on the]

principal and interest were required only as tenants occupied

the properties,” citing Defendant’s alleged modification of the

2001 notes “from time-to-time to reflect the rental income

received.” Plaintiffs contend this constitutes a course of

dealing, which should have been read into the consolidated loan.

This argument is without merit.

“In every contract there is an implied covenant of good

faith and fair dealing that neither party will do anything which

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injures the right of the other to receive the benefits of the

agreement.” Williams v. Craft Dev., LLC, 199 N.C. App. 500, 506,

682 S.E.2d 719, 723 (2009) (citations and internal quotation

marks omitted), disc. review denied, 363 N.C. 859, 695 S.E.2d

452 (2010). Plaintiffs’ argument conflates the implied covenant

of good faith and fair dealing with the parol evidence rule.

Whether Defendant breached certain additional, unwritten terms

contained in the consolidated loan is relevant to a cause of

action for breach of contract, not breach of the implied

covenant of good faith and fair dealing. As Plaintiffs do not

allege breach of contract in their complaint, this argument is

out of place.

Furthermore, Plaintiffs’ complaint fails to properly allege

facts evidencing a breach of the covenant of good faith and fair

dealing.6 Plaintiffs assert that Defendant breached the covenant

by (1) failing to sell the loans to Plaintiffs at the 50%

discount that Defendant allegedly offered to other would-be

purchasers and (2) “collecting rents and withholding material

information about the properties (including . . . appraisals)

6

Plaintiffs’ complaint also alleges “lack of consideration” for

the consolidated note as a part of their claim for breach of the

implied covenant of good faith and fair dealing. As we explained

in the preceding section, that argument is without merit.

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thereby hindering Plaintiffs[’] ability to find . . .

alternatives.” Defendant was under no contractual obligation,

however, to offer Plaintiffs a 50% discount. Such a right would

directly contradict the terms of the consolidated note, which

requires Plaintiffs to pay the loan in full. In addition,

Defendant had the right to collect rents pursuant to the

parties’ agreement in the deed of trust, and Plaintiffs had no

contractual or legal right to the appraisals. See, e.g., Camp v.

Leonard, 133 N.C. App. 554, 559, 515 S.E.2d 909, 913 (1999)

(“Other courts have . . . held the relationship between borrower

and lender is not a confidential one. Unless a further

obligation is assumed by the lender, its inspection of the

premises to be mortgaged is made only to determine whether the

property has sufficient value to secure the loan[] and is for

the benefit of the lender only.”) (citations omitted).

Accordingly, Plaintiffs’ second argument is overruled.

(3) Economic Duress

Plaintiffs also assert that Defendant fraudulently “created

the circumstances” that led to economic duress and then “used

the economic distress7 to force and coerce Plaintiffs to sign the

[consolidated n]ote” and personal guaranty in 2008. On appeal,

7

Plaintiffs do not distinguish between “duress” and “distress.”

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Plaintiffs argue that their only source of income at this time

was “rent received from the properties” and allege that they

were “prevented from finding alternative[ financing] because of

[Defendant’s] fraud and refusal to provide appraisals.” These

allegations do not state a valid claim of duress.

Duress exists where one, by the

unlawful act of another, is induced to make

a contract or perform or forego some act

under circumstances which deprive him of the

exercise of free will. A wrongful act or

threat is an important element of duress.

The act threatened is wrongful if made with

the corrupt intent to coerce a transaction

grossly unfair to the victim and not related

to the subject of such proceedings. . . .

Radford v. Keith, 160 N.C. App. 41, 43–44, 584 S.E.2d 815, 818

(2003). Furthermore,

[a] mere assertion of a grievance is

insufficient to state a claim upon which

relief can be granted [under Rule 12(b)(6)].

Some degree of factual particularity is

required. The statement of a claim for

relief must satisfy the requirements of the

substantive law which give[s] rise to the

pleadings. A complaint, to state a claim for

relief, must [therefore] refer to “the

transactions, occurrences, or series of

transactions or occurrences[] intended to be

proved” [as articulated in Rule 8(a) of the

North Carolina Rules of Civil Procedure].

Alamance Cnty v. N.C. Dep’t of Human Res., 58 N.C. App. 748,

750, 294 S.E.2d 377, 378 (1982) (citations and certain internal

quotation marks omitted) (holding that the plaintiff failed to

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state a claim of fraud for which relief could be granted when

its complaint made only “conclusory allegations of grievances

and offer[ed] no indication of the existence of facts which, if

proven, would permit a finding of fraud . . .”); see also Biddix

v. Henredon Furniture Indus., 76 N.C. App. 30, 33, 331 S.E.2d

717, 720 (1985) (“Plaintiff’s complaint, therefore, must give

sufficient notice of the events on which he bases his claim[]

and state sufficient facts to satisfy the substantive elements

of a legally recognized claim [to avoid dismissal under Rule

12(b)(6)].”) (emphasis added).

In this case, Plaintiffs’ complaint does not allege any

particular transactions, occurrences, or series of transactions

or occurrences invoking the elements of duress. Rather,

Plaintiffs assert that Defendant “used economic duress” to force

Plaintiffs’ compliance with the contract. On appeal, Plaintiffs

offer little clarification, only noting that they had few

financial resources at the time they agreed to the consolidation

loan and attributing this fact to Defendant’s undefined “fraud.”

These “merely conclusory” allegations “offer[] no indication of

the existence of facts which, if proven, would permit a finding”

of duress. See Alamance Cnty, 58 N.C. App. at 750, 294 S.E.2d at

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378. Accordingly, Plaintiffs’ argument as it pertains to duress

is overruled.

(4) Misrepresentation and Fraud

Plaintiffs next allege that “Defendant’s representations,

acts[,] and omissions[,] both in 2008 and again in November 2011

through December 2011, amount to fraud . . . .” Plaintiffs

assert that this fraud “induced [them] to enter [into] the

[consolidated note],” was “intended to cause [them] to breach

the [consolidated note],” caused them to rely on Defendant’s

promises, and was “intentional and wanton.” These allegations do

not amount to a valid claim of fraud.

The elements of a civil cause of action

for fraud are (1) a false representation or

concealment of a material fact (2) that is

reasonably calculated to deceive (3) made

with intent to deceive (4) which does in

fact deceive and (5) results in damage to

the injured party. [For an action in fraud]

to survive a motion to dismiss pursuant to

Rule 12(b)(6), the complaint must allege

with particularity all material facts and

circumstances constituting the fraud,

although intent and knowledge may be averred

generally. Thus, there is a requirement of

specificity as to the element of a

representation made by the alleged

defrauder: The representation must be

definite and specific.

Charlotte Motor Speedway, LLC v. Cnty of Cabarrus, __ N.C. App.

__, __, 748 S.E.2d 171, 178 (2013) (citations and internal

-25-

quotation marks omitted) (holding that the trial court correctly

dismissed the plaintiff’s fraud claim under Rule 12(b)(6) when

the complaint alleged that the defendant “made false

representation of material fact[,] . . . concealed material

facts regarding [the] ability to fund . . . promised amounts [of

money],” and based those allegations on a letter that did not

provide any “definite and specific” timeframe), disc. review

allowed, __ N.C. __, 753 S.E.2d 664 (2014).

Plaintiffs’ complaint is entirely devoid of particularity

as it relates to the claim of fraud. Plaintiffs merely allege in

sweeping terms that Defendant committed fraud and employed

“fraudulent representations” to induce them to sign the note. As

with Plaintiffs’ claim of economic duress and similar to the

claims from our opinion in Charlotte Motor Speedway, these

allegations are not sufficiently “definite and specific” to

support a claim of fraud. Accordingly, Plaintiffs’ argument is

overruled as it relates to fraud.

(5) Tortious Interference with Contract

Plaintiffs allege that Defendant tortiously interfered with

contracts between Plaintiffs and their tenants by collecting

rent from the tenants pursuant to the terms of the consolidated

note. Even assuming the truth of these allegations, they are not

-26-

sufficient to state a claim of tortious interference with

contact.

To establish a claim for tortious

interference with contract, a plaintiff must

show:

(1) a valid contract between the plaintiff

and a third person which confers upon the

plaintiff a contractual right against a

third person; (2) the defendant knows of the

contract; (3) the defendant intentionally

induces the third person not to perform the

contract; (4) and in doing so acts without

justification; (5) resulting in actual

damage to [the] plaintiff.

Interference is without justification if a

defendant’s motive is not reasonably related

to the protection of a legitimate business

interest.

Whether an actor’s conduct is justified

depends upon the circumstances surrounding

the interference, the actor’s motive or

conduct, the interests sought to be

advanced, the social interest in protecting

the freedom of action of the actor, and the

contractual interests of the other

party. . . .

A complaint must show that the defendant

acted with malice and for a reason not

reasonably related to the protection of a

legitimate business interest of the

defendant party.

Sellers v. Morton, 191 N.C. App. 75, 81–82, 661 S.E.2d 915, 921

(2008) (citations, internal quotation marks, and brackets

omitted). If the complaint admits a motive for the interference

-27-

other than malice, it must be dismissed. Filmar Racing, Inc. v.

Stewart, 141 N.C. App. 668, 674–75, 541 S.E.2d 733, 738 (2001)

(affirming the trial court’s dismissal of the plaintiff’s

complaint as it related to tortious interference with contract

under Rule 12(b)(6) because the complaint only alleged that the

defendant “lacked justification” for its acts, not that it acted

maliciously) (citations omitted).

In this case, Plaintiffs’ complaint states that Defendant

“incorrectly and unlawfully relie[d] on terms [in the

consolidated note] which were caused by fraud, economic

duress[,] and unfair trade practices.” Plaintiffs offer no

allegation that Defendant acted maliciously. Though Plaintiffs

assert that the consolidated note is an unlawful contract, they

admit that Defendant was acting pursuant to the terms of the

consolidated note. Indeed, Plaintiffs’ complaint includes a copy

of a letter from Defendant, which states its intention to

collect the rents “to secure [Plaintiffs’] obligations to

[Defendant] with respect to [the loan].” This indicates that

Defendant was acting in reasonable protection of its legitimate

business interests and not out of malice. Accordingly,

Plaintiffs have failed to state a claim of tortious interference

-28-

with contract for which relief may be granted, and their

argument is overruled as it pertains to that claim.

(6) Unfair and Deceptive Trade Practices

Plaintiffs allege that Defendant engaged in unfair and

deceptive trade practices by “demanding” immediate payment on

all three loans in September of 2008, before the loans were

consolidated, even though the loans were not in default.

Plaintiffs also characterize Defendant’s behavior as an

“intentional breach of contracts accompanied [by] aggravating

circumstances” and further allege that Defendant made different

representations regarding the interest rate charged on the

loans, but “actually charged interest” at the higher rates.

These allegations do not state a valid claim of unfair and

deceptive trade practices.

To establish a claim for unfair and

deceptive trade practices, [the complaining

party] must show: (1) that [the responding

party] committed an unfair or deceptive act

or practice, (2) [that] the action in

question was in or affecting commerce, and

(3) [that] the act proximately caused injury

to [the complainant]. An act or practice is

unfair if it is immoral, unethical,

oppressive, unscrupulous, or substantially

injurious to [customers]. An act or practice

is deceptive if it has the capacity or

tendency to deceive.

. . . .

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A mere breach of contract, even if

intentional, is not an unfair or deceptive

act . . . . It is well recognized that

actions for unfair or deceptive trade

practices are distinct from actions for

breach of contract and that a mere breach of

contract, even if intentional, is not

sufficiently unfair or deceptive to sustain

an action . . . . To recover for unfair and

deceptive trade practices, a party must show

substantial aggravating circumstances

attending the breach of contract. . . .

Bob Timberlake Collection, Inc. v. Edwards, 176 N.C. App. 33,

41–42, 626 S.E.2d 315, 322–23 (citations, internal quotation

marks, and certain ellipses omitted), disc. review denied, 360

N.C. 531, 633 S.E.2d 674 (2006).

On appeal, Plaintiffs argue that “[t]he allegations show

that [Defendant] used [its] inequitable position and power,

combined with [its] knowledge of Plaintiffs’ financial

condition, to cause Plaintiffs to sign a [p]romissory [n]ote in

violation of the law.” For support, Plaintiffs cite three cases

as examples of similar conduct: Wilder v. Squires, 68 N.C. App.

310, 315 S.E.2d 63, disc. rev. denied, 311 N.C. 769, 321 S.E.2d

158 (1984) (affirming the trial court’s award of damages for

unfair and deceptive trade practices by a vendor against a

prospective purchaser when the vendor threatened the purchaser

with loss of his deposit if the purchaser would not accept the

financing scheme offered by the vendor); Pedwell v. First Union

-30-

Nat’l Bank of N.C., 51 N.C. App. 236, 275 S.E.2d 565 (1981)

(reversing the trial court’s dismissal of the plaintiffs’

complaint of unfair and deceptive trade practices by the

defendant financial services provider when the plaintiffs

alleged that the services “conspired to keep [them] from

purchasing [a] condominium by . . . refus[ing] . . . a loan when

it was too late for [the plaintiffs] to obtain alternate

financing,” i.e., six days before closing on the purchase); and

Fallston Finishing, Inc. v. First Union Nat’l Bank, 76 N.C. App.

347, 333 S.E.2d 321 (concluding that evidence of a breach or

threat of breach of loan commitments by the defendant bank and

of great financial hardship faced by the plaintiff corporations

raised a jury issue as to whether an accord and satisfaction

occurred), cert. denied, 314 N.C. 664, 336 S.E.2d 621 (1985). We

are unpersuaded.

First, the mere act of “demanding” that a borrower

consolidate its loans is neither immoral, unethical, oppressive,

unscrupulous, substantially injurious, or deceptive. Cf. Shell

Trademark Mgmt. BV & Motiva Enters. v. Ray Thomas Petroleum Co.,

642 F. Supp. 2d 493 (2009) (“It was neither unfair nor deceptive

for Motiva to insist that RTP pay out their contract rather than

substitute another gas station for the gas station which

-31-

closed.”). To the extent there is a power differential between

the parties, that difference is an organic element of the

lender/borrower relationship. It is not grounds to support a

claim of unfair and deceptive trade practices. Plaintiffs do not

allege that Defendant made deceptive statements, used its

authority to coerce or force Plaintiffs to agree to consolidate,

or otherwise acted inappropriately in its demand for payment.

Whether the loan payments were in default or not, the facts

alleged in the complaint reveal that Defendant gave Plaintiffs a

full six weeks to decide how to handle the situation. This is

sufficient time to evaluate Defendant’s “demand,” consult a

lawyer, if necessary, and respond appropriately. The validity of

Defendant’s demand, alone, does not establish a claim of unfair

and deceptive trade practices. Even assuming that Defendant

breached a contract with Plaintiffs, Plaintiffs simply do not

allege facts showing the existence of other aggravating factors

that might transform Plaintiffs’ claims from mere grievances to

colorable causes of action.

Second, the cases cited by Plaintiffs are not applicable

here. In Wilder, the defendant threatened the plaintiff with the

loss of a substantial monetary deposit if he did not agree to

the defendant’s terms. 68 N.C. App. at 315, 315 S.E.2d at 66.

-32-

Plaintiffs allege no such threat here. In Pedwell, the

plaintiffs alleged that the defendant financial services

provider conspired to refuse a necessary loan with only six days

remaining before closing on certain property. 51 N.C. App. at

237, 275 S.E.2d at 566. Here, unlike the financial services

provider in Pedwell, Defendant gave Plaintiffs notice of its

demand a full six weeks before payment was expected. As

discussed above, this was a sufficient amount of time to allow

Plaintiffs to collect themselves and respond appropriately.

Additionally, Fallston Financing, Inc. involves economic duress,

not unfair and deceptive trade practices. 76 N.C. App. at 364,

333 S.E.2d at 331. Therefore, it is not applicable in this case.

Lastly, Plaintiffs’ allegations that Defendant explained

its interest rate on the loans using different values and

eventually charged Plaintiffs at the higher value is not

sufficient, alone, to establish a claim of unfair and deceptive

practices. Even assuming that Defendant communicated two

different methods of calculating the interest on the loans to

Plaintiffs, the plain language of the consolidated note

indicates that “[i]nterest will be calculated on a[n]

[a]ctual/360 basis.” The fact that Defendant described two

different ways of calculating such rate before the loans were

-33-

consolidated does not have an appreciable effect on the

marketplace and does not amount to unfair and deceptive trade

practices. See Carcano v. JBSS, LLC, 200 N.C. App. 162, 172, 684

S.E.2d 41, 50 (2009) (“The ‘relevant gauge’ of an act’s

unfairness or deception is the effect of the actor’s conduct on

the marketplace.”) (citation, certain internal quotation marks,

and brackets omitted). Accordingly, Plaintiffs’ argument as it

pertains to its claim of unfair and deceptive trade practices is

overruled.

(7) Discovery

In the alternative, Plaintiffs argue that any “technical

discrepancy” in their pleadings could be remedied by discovery.

Therefore, Plaintiffs assert that it would be “unfairly

prejudicial” to allow dismissal of their case without giving

them the opportunity to review the “vast majority of the

evidence relating to the[ir] claims” that is in Defendant’s

control. We disagree. “While absolute precision in pleading is

not necessary, [the] plaintiffs may not simply state a

generalized grievance and thereby gain the right to go on a

discovery fishing expedition.” Smith v. City of Charlotte, 79

N.C. App. 517, 529–30, 339 S.E.2d 844, 852 (1986). Plaintiffs’

argument is therefore overruled. Accordingly, we affirm the

-34-

trial court’s order granting Defendant’s motion to dismiss

Plaintiffs’ complaint under Rule 12(b)(6) for failure to state

any claim upon which relief may be granted.

II. Rule 60(b)

Alternative to their argument that the trial court erred in

granting Defendant’s motion to dismiss their complaint,

Plaintiffs argue that relief is proper pursuant to Rule 60(b),

subsections (1)–(3) and (6), and that they should be allowed to

amend their complaint pursuant to Rule 15. We agree with the

trial court’s decision that, if it had jurisdiction over the

matter, Plaintiffs’ Rule 60(b) motion should be denied and do so

here.

(1) Any Reason Justifying Relief

Under Rule 60(b)(6), the court may grant relief from a

judgment for any reason “justifying relief.” N.C.R. Civ. P.

60(b)(6).

The grounds for setting aside judgment

pursuant to Rule 60(b)(6) are equitable in

nature. What constitutes cause to set aside

judgment pursuant to Rule 60(b)(6) is

determined by whether (1) extraordinary

circumstances exist; and (2) whether the

action is necessary to accomplish justice.

-35-

Trivette v. Trivette, 162 N.C. App. 55, 63, 590 S.E.2d 298, 304

(2004) (citations omitted). This is a two-pronged test. See id.

Plaintiffs argue that relief is proper under Rule 60(b)(6)

because the circumstances surrounding their case have changed so

substantially that justice demands relief. Plaintiffs describe

those circumstances as follows: First, Defendant filed a

deficiency action against Plaintiffs. Second, Defendant failed

to disclose material facts before the 12(b)(6) hearing which

“support prejudicial irregularity in the foreclosure

proceedings.” Third, the consideration paid for Property 3 was

grossly inadequate. Fourth, Defendant has neither answered the

allegations in Plaintiffs’ complaint nor allowed discovery, and

the trial court erred in refusing to allow Plaintiffs to offer

evidence at the 2 December 2013 hearing on their motion for

60(b) relief. Fifth, the decisions of the clerk of court in the

foreclosure action should not be given preclusive effect in the

deficiency action. We are unpersuaded.

(a) The Deficiency Action

Plaintiffs do not provide a clear reason for why the act of

filing a deficiency action constitutes an extraordinary

circumstance justifying relief from the trial court’s order.

Instead, Plaintiffs cite an opinion of this Court in Sloan v.

-36-

Sloan, 151 N.C. App. 399, 566 S.E.2d 97 (2002). Plaintiffs also

assert that Defendant wrongly failed to reveal the following

facts in its deficiency action: Defendant’s continued receipt of

rents from tenants, the transfer of property to the affiliated

corporations, the sale of Property 3 for substantial profit, and

its intention to pursue the deficiency action.8

We need not address the merits of Plaintiffs’ argument as

it pertains to the deficiency action or the application of our

opinion in Sloan. Even if Defendant erred in failing to reveal

certain facts in its deficiency action, the act of filing such

an action is not an extraordinary circumstance justifying

relief. The proper action for Plaintiffs to pursue in the event

that a deficiency action is inappropriate is not relief pursuant

to Rule 60(b), but a motion to dismiss. See generally N.C.R.

Civ. P. 12. Therefore, Plaintiffs’ argument as it relates to the

deficiency action is overruled.

(b) “Prejudicial Irregularities” at Foreclosure

Plaintiffs also assert that extraordinary circumstances

were present justifying relief from the trial court’s judgment

8

Plaintiffs do not specify why they believe Defendant should

have notified them of its intention to pursue the deficiency

action in that same action. Obviously, such notification would

have little value once the action was filed.

-37-

because Defendant failed to disclose certain material facts

relating to “prejudicial irregularit[ies]” in the foreclosure

proceedings. Specifically, Plaintiffs assert that Defendant

incorrectly failed to disclose: the issuance of an “excessive”

6.8 million dollar bond to stay the foreclosure sale and allow

appeal, the use of “en masse” advertising by Defendant to inform

potential buyers about the foreclosure sale, and the act of

advertising the sale during the TRO. We again disagree.

These facts are not relevant to the causes of action

Plaintiffs allege in their complaint. To the extent that

Defendant’s failure to reveal certain facts relating to the

foreclosure proceedings was improper, it does not justify relief

from the trial court’s grant of Defendant’s motion to dismiss

under Rule 12(b)(6). Accordingly, Plaintiffs’ argument is

overruled as it relates to these so-called irregularities.

(c) “Grossly Inadequate” Consideration

Lastly, Plaintiffs assert that extraordinary circumstances

sufficient to justify relief from the trial court’s order on

Defendant’s motion to dismiss are present in the form of

“grossly inadequate” consideration paid for Property 3 in May of

2013, i.e., consideration amounting to a $275,000 profit for

-38-

Defendant. For the reasons discussed in the preceding section,

this argument is without merit.

(d) Discovery, Plaintiffs’ Allegations, and

Plaintiffs’ Evidence

Plaintiffs next argue that extraordinary circumstances

justifying relief are present in this case because Defendant

failed to answer the allegations in Plaintiffs’ complaint or

allow discovery and because the trial court refused to allow

Plaintiffs to present evidence regarding the validity of the

consolidated note and their inability to pay the 6.8 million

dollar security bond. We are unpersuaded.

The rule of civil procedure requiring a defendant to file

counterclaims in a responsive pleading, N.C.R. Civ. P. 13(a), is

not applicable when a defendant files a motion to dismiss

instead of a pleading. Cf. Mellon Bank, N.A. v. Ternisky, 999

F.2d 791, 795 (1993) (“[Federal Rule 13(a)] does not come into

play when a defendant files only a motion to dismiss, instead of

a pleading.”); see generally Hardin v. York Mem’l Park, __ N.C.

App. __, __, 730 S.E.2d 768, 773 (2012) (“For purposes of [Rule

15(a)], a Rule 12(b)(6) motion to dismiss is not a responsive

pleading and thus does not itself terminate [the] plaintiff’s

unconditional right to amend a complaint under Rule 15(a).”)

(citation and internal quotation marks omitted), disc. review

-39-

denied, 366 N.C. 571, 738 S.E.2d 376 (2013). Therefore,

Defendant’s failure to answer Plaintiffs’ allegations is not an

extraordinary circumstance justifying relief.

In addition, for the reasons discussed in section I(7) of

this opinion, supra, Defendant’s failure to allow discovery does

not constitute an extraordinary circumstance justifying relief.

Lastly, Plaintiffs allege that the trial court erred in

refusing to allow them to present evidence “which (1) supports

invalidating the ‘consolidated note’ and (2) . . . [proves]

Plaintiffs could not obtain a []6.8 [m]illion [d]ollar security

bond necessary to challenge the [c]lerk’s findings.” Plaintiffs

do not describe this evidence, but cite to a portion of the

transcript of the 2 December 2013 hearing in which counsel for

Plaintiffs — discussing Defendant’s deficiency action — states

the following:

So, with that being said, Your Honor, again,

I don’t want to — I want to preserve my

right to offer into evidence Mr. Taylor’s

testimony to the extent it’s necessary to

preserve our right in the [N.C. Gen. Stat. §

45-21.16] hearing to insure that there is no

claim for preclusive effect. But I think

that I’m hearing the other side acknowledge,

and I think Your Honor, from the bench

stated earlier that we travelled on separate

tracks, that that’s not the intent of that

[N.C. Gen. Stat. § 45-21.16] hearing or the

appeal there[]from to preclude us from

entering evidence. And with that being said

-40-

I’d leave it to Your Honor. If Your Honor

would like me — in order to preserve that

right I’d be glad to bring Mr. Taylor to the

bench.

The trial court responded by saying: “At this point and time and

[sic] I don’t believe the testimony is appropriate or

necessary.”9

This testimony relates to the deficiency action, not

Plaintiffs’ Rule 60 motion for relief. Thus, it is not relevant

to Plaintiffs’ argument that extraordinary circumstances are

present to justify relief under Rule 60(b). Accordingly,

Plaintiffs’ argument as it relates to this testimony is

overruled.

(e) Claim Preclusion, Res Judicata, and Judicial

Estoppel

Next, Plaintiffs argue that they would “potential[ly]” be

unfairly prejudiced by applying the clerk of court’s findings in

the foreclosure proceedings to Defendant’s deficiency case and,

9

Plaintiffs’ use of the word “refused” to describe the trial

court’s action is inaccurate. The testimony quoted above

indicates that Plaintiffs were content to refrain from

introducing the testimony as long as they could preserve their

right to use it in the hearing on Defendant’s deficiency action.

-41-

therefore, that res judicata and judicial estoppel should not

apply. As discussed at length above, this argument is entirely

unrelated to Plaintiffs’ Rule 60(b) motion for relief, despite

its placement in the “extraordinary circumstances” section of

Plaintiffs’ brief. Accordingly, we decline to review it here. If

Plaintiffs wish to litigate the validity of the foreclosure

proceedings, to the extent those issues are not moot, they

should do so in a separate action.

(f) Justice

Finally, Plaintiffs assert that justice demands relief from

the trial court’s order. Because we have not found any

extraordinary circumstances justifying relief in this case, we

need not address this argument. See Huggins v. Hallmark Enters.,

84 N.C. App. 15, 25, 351 S.E.2d 779, 785 (1987) (“Th[e test for

relief under Rule 60(b)(6)] is two-pronged, and relief should be

forthcoming only where both requisites exist.”). Accordingly,

Plaintiffs’ argument for relief under Rule 60(b)(6) is

overruled.

(2) Excusable Neglect

Rule 60(b)(1) provides that the trial court may grant

relief to a party from a final order for “[m]istake,

-42-

inadvertence, surprise, or excusable neglect.” N.C.R. Civ. P.

60(b)(1).

To set aside a judgment on the grounds of

excusable neglect under Rule 60(b), the

moving party must show that the judgment

rendered against him was due to his

excusable neglect and that he has a

meritorious defense. . . .

. . . .

The issue of what constitutes excusable

neglect is a question of law which is fully

reviewable on appeal. While there is no

clear dividing line as to what falls within

the confines of excusable neglect . . . ,

[it] depends upon what, under all the

surrounding circumstances, may be reasonably

expected of a party in paying proper

attention to his case.

Thus, . . . deliberate or willful conduct

cannot constitute excusable neglect, nor

does inadvertent conduct that does not

demonstrate diligence.

And, clearly, an attorney’s negligence in

handling a case should not be grounds for

relief under the excusable neglect provision

of Rule 60(b)(1).

Monaghan v. Schilling, 197 N.C. App. 578, 584, 677 S.E.2d 562,

566 (2009) (citations, internal quotation marks, and certain

ellipses omitted).

In arguing that they are entitled to relief for excusable

neglect, Plaintiffs repeat their previous arguments in a new

context. Specifically, Plaintiffs assert that they delayed

-43-

amending their complaint to reflect claims of grossly inadequate

consideration because they lacked access to the appraisals and

were unable to pay the 6.8 million dollar bond. Plaintiffs also

characterize their delay as excusable neglect because they were

unaware (1) that Defendant would pursue the deficiency judgment

and (2) of certain communications made by Defendant regarding

the defense of ratification. Finally, Plaintiffs assert that

they were unaware of certain details regarding the foreclosure

proceedings and that this should be considered excusable neglect

sufficient to justify relief. We disagree.

To the extent Plaintiffs’ alleged neglect might have

otherwise allowed them to establish some meritorious defense to

dismissal,10 such neglect suggests that Plaintiffs were not

paying proper attention to their case. The foreclosure sale

occurred on 14 September 2012, giving Plaintiffs ample time to

determine whether the properties were sold for adequate

consideration at that sale. In addition, Defendant had no

obligation to inform Plaintiffs that it was planning to pursue a

deficiency judgment. Plaintiffs’ lack of knowledge that

Defendant intended to bring a deficiency action does not

10

We do not opine that it does. Indeed, as noted above,

Plaintiffs had no right to access the appraisals.

-44-

“excuse” anything related to their 12(b)(6) claim. Lastly,

Plaintiffs’ alleged misunderstanding about the nature of

Defendant’s communications on the issue of ratification is more

akin to carelessness than excusable neglect. Accordingly, the

trial court did not err by indicating that it would deny

Plaintiffs’ motion, and Plaintiffs’ argument as it pertains to

Rule 60(b)(1) is overruled.

(3) Newly Discovered Evidence

Rule 60(b)(2) provides that the trial court may relieve a

party from a final judgment on a showing of “[n]ewly discovered

evidence which by due diligence could not have been discovered

in time to move for a new trial under Rule 59(b).” N.C.R. Civ.

P. 60(b)(2).

To constitute “newly discovered evidence”

within the meaning of Rule 60(b)(2), the

evidence must be such that it could not have

been obtained in time for the original

proceeding through the exercise of due

diligence. The “newly discovered evidence”

must have been in existence at the time of

the trial. This limitation on newly

discovered evidence has been justified on

the firm policy ground that, if the

situation were otherwise, litigation would

never come to an end.

Parks v. Green, 153 N.C. App. 405, 412, 571 S.E.2d 14, 19 (2002)

(citations, certain internal quotation marks, and brackets

omitted).

-45-

On appeal, Plaintiffs characterize the following facts as

newly discovered evidence justifying relief from the trial

court’s order: (1) the market value of the properties, which was

not discoverable by the time of the 12(b)(6) hearing because

Defendant refused to provide appraisals; (2) the fact that

Defendant transferred the properties to the affiliated

corporations, which was not discoverable by the time of the

12(b)(6) hearing because Defendant did not reveal this

information; and (3) the fact that the May 2013 sale of Property

3 “yielded a substantial profit of at least $275,000[],”

knowledge of which “was not possible at the 12(b)(6) hearing as

the events had not yet occurred.” We are unpersuaded

First, the market value of the properties does not

constitute newly discovered evidence justifying relief.

Plaintiffs were the owners of the properties for a number of

years and entirely capable — prior to the foreclosure sale — of

determining the market value of the property. In addition, we

have already determined that Plaintiffs’ had no right to access

the appraisals. Accordingly, this argument is overruled.

Second, Plaintiffs do not provide any cogent argument

explaining why Defendant’s decision to transfer the properties

to the affiliated corporations has any bearing on their

-46-

complaint, and we are unable to discern any such reason.

Therefore, Plaintiffs’ argument as it pertains to Defendant’s

decision to transfer the properties to the affiliated

corporations is overruled.

Third, Plaintiffs’ argument is defeated by its own words.

As noted above, newly discovered evidence sufficient to justify

relief must have been in existence at the time of the relevant

legal proceeding. See id. Plaintiffs state that the sale of

Property 3 occurred after the 3 December 2012 hearing on

Defendant’s motion to dismiss, in May of 2013. Therefore, the

profit resulting from the sale cannot constitute newly

discovered evidence justifying relief because the sale had not

occurred at the time of the 12(b)(6) hearing. As Plaintiffs

could not have discovered it on 3 December 2012, it cannot now

be “newly discovered.” Therefore, Plaintiffs’ argument is

overruled.

(4) Fraud, Misrepresentation, or Misconduct

Rule 60(b)(3) provides that a trial court may award relief

from an order because of fraud, misrepresentation, or misconduct

by the nonmoving party. N.C.R. Civ. P. 60(b)(3). Plaintiffs

allege on appeal that Defendant’s “refusals” to answer the

allegations in the complaint, answer the counterclaims in the

-47-

deficiency action, or respond to Plaintiffs’ discovery requests

constitute intrinsic fraud justifying relief.

As discussed above, Defendant’s decisions not to respond to

the allegations made by Plaintiffs or allow discovery were

appropriate. Even if those decisions were somehow inappropriate,

however, they would not constitute fraud under any definition of

the term. Therefore, Plaintiffs’ final argument is overruled.

Conclusion

For the reasons stated above, the trial court’s decision

indicating it would be inclined to deny Plaintiffs’ motion for

relief pursuant to Rule 60(b) is correct, and the trial court’s

order granting Defendant’s motion to dismiss under Rule 12(b)(6)

is

AFFIRMED.

Judges CALABRIA and ELMORE concur.

Report per Rule 30(e).