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Giles v. First Virginia Credit Services3/5/2002
PUBLISHED
Appeal by plaintiffs from order signed 15 June 2000 by Judge Forrest Donald Bridges in Superior Court, Lincoln County. Heard in the Court of Appeals 12 September 2001.
Richard Giles and Joann Giles (plaintiffs) appeal the trial court's order granting First Virginia Credit Services, Inc.'s (First Virginia) motion for summary judgment in part.
Plaintiffs filed a complaint against defendants First Virginia and Professional Auto Recovery, Inc. (Professional Auto Recovery) for wrongful repossession of an automobile. Plaintiffs alleged in an amended complaint that: (1) First Virginia and Professional Auto Recovery wrongfully converted and/or repossessed the automobile and plaintiffs' personal property located within the automobile; (2) plaintiffs made a payment on the account which First Virginia accepted immediately prior to First Virginia's repossession of the automobile and which First Virginia subsequently cashed and applied to plaintiffs' account after the repossession; (3) removal of the automobile constituted breach of the peace in violation of N.C. Gen. Stat. § 25-9503; (4) N.C. Gen. Stat. § 25-9-503 is unconstitutional; and (5) First Virginia was negligent in hiring Professional Auto Recovery and committed unfair or deceptive trade practices entitling plaintiffs to treble damages.
First Virginia filed an answer stating the automobile was repossessed due to the default of Joann Giles in making the payments to First Virginia on a loan secured by the automobile. First Virginia stated that N.C. Gen. Stat. § 25-9-503 permitted a secured lender to peaceably repossess its collateral upon default by a debtor and that such repossession could not, as a matter of law, constitute conversion of the collateral or an unfair or deceptive trade practice. First Virginia moved to dismiss plaintiffs' complaint for failure to state a claim pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6).
Joann Giles entered into an installment sale contract on or about 18 January 1997 for the purchase of an automobile. The contract was assigned to First Virginia, which obtained a senior perfected purchase money security interest in the automobile. The terms of the contract required Joann Giles to make sixty regular monthly payments to First Virginia. The contract stated that Joann Giles' failure to make any payment due under the contract within ten days after its due date would be a default. The contract contained an additional provision agreed to by Joann Giles that stated:
If I am in default, you may consider all my remaining payments to be due and payable, without giving me notice. I agree that your rights of possession will be greater than mine. I will deliver the property to you at your request, or you may use lawful means to take it yourself without notice or other legal action. . . .
If you excuse one default by me, that will not excuse later defaults.
During the early morning hours of 27 June 1999, Professional Auto Recovery, at the request of First Virginia, repossessed the locked automobile from plaintiffs' front driveway. According to First Virginia, the account of Joann Giles was in arrears for payments due on 2 May 1999 and 2 June 1999, and pursuant to the terms of the contract, repossession was permitted.
In an affidavit filed by plaintiffs in opposition to First Virginia's motion for summary judgment, plaintiffs' neighbor, Glenn A. Mosteller (Mr. Mosteller), stated that he was awakened around 4:00 a.m.
by the running of a loud diesel truck engine on the road outside my house. Evidentially the truck was stopped because I lay in bed for a while and did not get up. I then became concerned
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