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[T] Viswanathan v. Chrysler Financial Co.11/4/2003
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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 Appellate Procedure.
Plaintiff, Tenkasi M. Viswanathan, appeals from orders dismissing his claims against defendants for: (1) unfair and deceptive trade practices under Chapter 75 of the North CarolinaGeneral Statutes; (2) a violation of due process; (3) a violation of his rights under the Fourth Amendment; and (4) a violation of his rights under the North Carolina Constitution. For the reasons discussed herein, we affirm in part and reverse and remand in part.
Plaintiff's son, Dhuruvan Viswanathan (Dhuruvan), purchased an Isuzu Amigo automobile in July 1996. The purchase was financed with a loan from defendant Chrysler Financial Company (Chrysler). Dhuruvan defaulted on the loan in May 1997. On 6 September 1997, employees of defendant American Recovery Specialists (ARS) came to plaintiff's home, where the Isuzu was parked, and repossessed the car at about 2:30 a.m.
At the time of the repossession, plaintiff's wife, Uma, was home alone. She saw "powerful floodlights" in the backyard and heard the tow truck driving around her home. Plaintiff alleged that Uma was so overcome with fear that she later resigned her job at the University of North Carolina at Wilmington. He further alleged that the loss of Uma's income strained the Viswanathan marriage. Subsequently, Uma left plaintiff in January 1998. Uma and plaintiff have not seen each other since May 1999.
Plaintiff filed a complaint on 6 September 2001, seeking "compensatory and exemplary damages," punitive damages, and attorney fees. Plaintiff alleged that the conduct of defendants: (1) constituted unfair and deceptive trade practices under Chapter75 of the North Carolina General Statutes; (2) violated due process because the vehicle was not repossessed during normal business hours; (3) violated plaintiff's rights under the Fourth Amendment to be secure in his home; and (4) violated his rights under the North Carolina Constitution to not be disseized of his property except by law.
On 25 October 2001, Chrysler filed a motion seeking dismissal of plaintiff's complaint and attorney fees. The motion to dismiss was made under Rule 12(b)(6) based upon plaintiff's failure to state a claim upon which relief can be granted, and the applicable statute of limitations. Chrysler also sought attorney fees pursuant to N.C. Gen. Stat. ยง 75-16.1(2). On 13 December 2001, Judge D. Jack Hooks, Jr. entered an order dismissing plaintiff's claims against Chrysler and awarded Chrysler $2,949.00 in attorney fees. On 27 December 2001, plaintiff moved for the trial court to alter or amend the dismissal order pursuant to Rules 52(b) and 59 of the North Carolina Rules of Civil Procedure. This motion was denied by Judge E. Lynn Johnson on 11 March 2002.
Defendant ARS was served by certified mail on 4 October 2001. On 27 November 2001, plaintiff moved for an entry of default pursuant to Rule 55(a) for ARS's failure to plead. No default was entered. On 14 December 2001, ARS filed a motion to dismiss and a motion for attorney fees. The trial court granted ARS's motion todismiss on 14 January 2002. Plaintiff's motion to alter or amend this order pursuant to Rules 52(b) and 59 was denied on 11 March 2002. Plaintiff appeals the trial court's grant of defendants' motions to dismiss and the trial court's denial of his motions to alter or amend the respective orders.
In his first assignment of error, plaintiff argues that the trial court should not have heard Chrysler's motion to
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