Green Tree Servicing LLC v. Locklear , 236 N.C. App. 514 ( 2014 )

NO. COA13-1287
NORTH CAROLINA COURT OF APPEALS
Filed: 7 October 2014
GREEN TREE SERVICING LLC,
Plaintiff
Robeson County
v.
No. 12 CVS 3092
JIMMY LOCKLEAR and TRUDY LOCKLEAR,
Defendants
Appeal by defendants from orders entered 23 April 2013 and
5 August 2013 by Judge Thomas H. Lock in Robeson County Superior
Court. Heard in the Court of Appeals 4 March 2014.
Jordan Price Wall Gray Jones & Carlton, by Paul T. Flick
and Lori P. Jones, for Plaintiff.
The Law Office of Benjamin D. Busch, PLLC, by Benjamin D.
Busch, for Defendants.
ERVIN, Judge.
Defendants Jimmie and Trudy Locklear appeal from orders
dismissing the counterclaims that they had attempted to assert
against Plaintiff and denying their motion seeking to have the
order dismissing their counterclaims set aside.1 On appeal,
1
Although the notice of appeal that Defendants filed made
reference to both of the orders mentioned in the text of this
opinion, Defendants have not, as Plaintiff correctly notes, made
any argument challenging the denial of their motion for a new
trial. As such, the validity of the trial court’s order denying
Defendant’s motion for a new trial is not properly before us.
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Defendants contend that they have standing to pursue their
claims under the North Carolina Debt Collection Act on the
grounds that they occupy the status of “consumers” as that term
is used in the relevant statutory provisions. After careful
consideration of Defendants’ challenge to the trial court’s
order in light of the record and the applicable law, we conclude
that the trial court’s order should be reversed and that this
case should be remanded to the Robeson County Superior Court for
further proceedings not inconsistent with this opinion.
I. Factual Background
A. Substantive Facts2
On 28 February 1998, Marvin and Mertice Locklear executed a
Manufactured Home Retail Installment Contract and Security
Agreement under which they purchased a manufactured home from
Ted Parker Home Sales, Inc. According to the provisions of the
contract between the parties, Ted Parker was authorized to
repossess the manufactured home in the event that any act
constituting a default as defined in the agreement occurred,
including any failure to make the required monthly payments in a
2
The facts set forth in the text of this opinion are derived
from an examination of the allegations set out in Defendants’
amended counterclaim as compared to the allegations contained in
their original pleading. See Hughes v. Anchor Enters., Inc.,
245 N.C. 131, 135, 95 S.E.2d 577, 581 (1956) (holding that,
“[w]hile the excerpt from the original complaint was competent
as evidence, as a pleading it was superseded by the amended
complaint”).
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timely manner. Subsequently, Ted Parker assigned its rights
under the contract to a pool serviced by Plaintiff.
By November 2004, Marvin and Mertice Locklear had both
died, with Mertice Locklear having survived Marvin Locklear by
approximately five years. Defendant Jimmie Locklear received a
partial interest in the manufactured home that Marvin and
Mertice Locklear had purchased from Ted Parker by virtue of the
residuary clause contained in Mertice Locklear’s will. Although
Mertice Locklear’s will was admitted to probate, the estate
administration process was never completed. On 31 October 2012,
Defendant Jimmie Locklear qualified as the collector of Mertice
Locklear’s estate.
Defendants took possession of the manufactured home used to
secure the original debt in 2004 and used it as their principal
residence. Although Plaintiff was aware that Defendants had
begun to occupy the manufactured home, it did not provide
Defendants with an opportunity to assume the underlying debt or
take any other action to make Defendants liable on the
obligation created under the original contract between Marvin
and Mertice Locklear and Ted Parker and knew that Defendants, as
compared to Mertice Locklear’s estate, were not personally
obligated to make the payments required under the original
contract. As a result, the monthly statements that Plaintiff
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sent to the residence were addressed to “Mertice Locklear C/O
Jim and Trudy Locklear.”
On or about 12 September 2011, Plaintiff sent Defendants a
document discussing a deferral of the monthly payments required
under the original agreement that included language to the
effect that the document had been transmitted to Defendants as
part of “an attempt to collect a debt.” After entering into a
deferral agreement with Plaintiff, Defendants made the required
payments prior to the payment applicable to January 2012 in a
timely manner.
On or about 12 June 2012, an agent of Plaintiff called
Defendant Jimmie Locklear on his cell phone during work hours
despite the fact that Plaintiff had previously been advised not
to attempt to contact Defendant Jimmie Locklear while he was at
work. Instead of answering this phone call, Defendant Jimmie
Locklear immediately terminated the call in compliance with his
employer’s strict prohibition against engaging in cell phone
conversations during work hours. As a result, Plaintiff’s agent
called Defendant Jimmie Locklear again and left him a message to
the effect that Defendant Jimmie Locklear had “just hung up on
your account manager,” that “[i]t’s probably not going to go
well” for Defendant Jimmie Locklear, and that Defendant Jimmie
Locklear should expect to receive a legal notice in the mail.
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Although Defendant Trudy Locklear called Plaintiff’s agent and
informed him that she would be willing to make two payments of
$1,000 each by a certain date in order to bring the payments
required under the original purchase contract current,
Plaintiff’s agent responded by telling Defendant Trudy Locklear
that Defendants would need to make the required payments before
the date that Defendant Trudy Locklear had mentioned and
suggested that she pawn her jewelry and lawnmower in order to
make the required payment. As a result, Defendant Trudy
Locklear borrowed money from an unknown source or sources and
used the money that she borrowed on this occasion to send a
payment to Plaintiff on 15 June 2012.
Subsequently, Defendant Trudy Locklear called Plaintiff to
confirm that the payment that she had made had been received and
was told that Defendants had been granted a deferral for June
and July, so that their next payment was not due until 5 August
2012. In spite of this understanding, Plaintiff sent a letter
to Defendants on or about 18 June 2012 indicating that Plaintiff
had begun to take the steps necessary to obtain possession of
the collateral, with this letter containing the statement that
the “communication [was] from a debt collector” and represented
an “attempt to collect a debt.”
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On 20 July 2012, another of Plaintiff’s agents told
Defendant Trudy Locklear that the oral agreement that she had
made with Plaintiff in June 2012 had not been entered into
Plaintiff’s recordkeeping system, that there would be no
deferral of the June and July payments, and that the overdue
payments were due immediately. Although Defendant Trudy
Locklear offered to pay $1,000 for the months of September and
October, her offer was rejected. Instead, Plaintiff’s agent
asked Defendant Trudy Locklear where her husband’s money was
going. In response to Defendant Trudy Locklear’s assertion that
Defendants had other financial obligations in addition to those
associated with the manufactured home that Marvin and Mertice
Locklear had purchased from Ted Parker, Plaintiff’s agent
suggested that Defendants defer payments on their van in order
to ensure that Plaintiff received payment.
On 24 July 2012, Defendant Trudy Locklear spoke with
another of Plaintiff’s agents, who asked her, in response to
Defendant Trudy Locklear’s inquiry concerning the amount of time
that would be available before Defendants had to vacate the
manufactured home, “What are you going to do, live in your van?”
After making that statement, Plaintiff’s agent hung up on
Defendant Trudy Locklear. Subsequently, another of Plaintiff’s
agents called Defendant Trudy Locklear and stated that
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Defendants would not be forced to vacate the manufactured home
in the event that the required monthly payment was automatically
drafted from their bank account. In response to Defendant Trudy
Locklear’s comment that Defendants’ account did not contain
sufficient funds to support the making of the required payments,
Plaintiff’s agent stated that Plaintiff would refund the
resulting overdraft fee as long as a draft was scheduled.
Although Defendant Trudy Locklear agreed to enter into the
proposed arrangement based upon her belief that Defendants would
be forced to vacate the manufactured home in the event that she
acted otherwise, Defendants later closed the account in question
before any draft was actually made against that account.
On or about 30 August 2012, Defendants notified Plaintiff
that they were represented by counsel. On 12 September 2012,
Plaintiff contacted counsel for Defendants and agreed to stop
contacting Defendants by telephone. Even so, Plaintiff’s agents
contacted Defendant Jimmie Locklear on or about 26 November 2012
using a work number that he had requested that Plaintiff refrain
from using. In the course of the ensuing conversation,
Plaintiff’s agent indicated that Plaintiff was attempting to
collect a debt. The same agent contacted Defendant Trudy
Locklear on the same date for the same purpose.
B. Procedural Facts
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On 7 November 2012, Plaintiff filed a complaint against
Defendants seeking to recover the manufactured home and certain
of its contents based upon the fact that required payments
against the underlying debt had not been made. On 4 December
2012, Defendants filed a responsive pleading in which they
responded to the material allegations contained in Plaintiff’s
complaint, moved to dismiss Plaintiff’s complaint, and asserted
a number of counterclaims against Plaintiff, including claims
based upon alleged violations of the North Carolina Debt
Collection Act and the equivalent provisions of federal law.
On 22 January 2013, the trial court entered an order
denying Defendants’ dismissal motion. On 29 January 2013,
Plaintiff filed a motion to dismiss Defendants’ counterclaims.
On 4 March 2013, Defendants filed a response to Plaintiff’s
dismissal motion. On 18 March 2013, Defendants filed an amended
counterclaim that sought relief from Plaintiff on the same
essential basis set forth in their original responsive pleading.
On 22 April 2013, Plaintiff filed a motion seeking the entry of
a final judgment in its favor with respect to the repossession
claim asserted in its complaint. On 23 April 2013, the trial
court entered an order dismissing Defendants’ counterclaims.
On 2 May 2013, Defendants filed a motion seeking the entry
of an order setting aside the order dismissing their
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counterclaims. On 20 May 2013, the trial court entered a final
judgment awarding Plaintiff possession of the manufactured home.
Defendants’ motion to set aside the order dismissing their
counterclaims was denied by the trial court on 5 August 2013.
Defendants noted an appeal to this Court from the trial court’s
orders dismissing their counterclaims and denying their motion
to set aside the order dismissing their counterclaims.3
II. Legal Analysis
In their brief, Defendants argue that the trial court erred
by granting Plaintiff’s motion to dismiss their counterclaims, a
decision that was predicated on the theory that Defendants were
not “consumers” for purposes of the North Carolina Debt
Collection Act. In support of this contention, Defendants argue
that the plain language of the statute necessitates a conclusion
that individuals, like themselves, who are alleged by a debt
collector to be liable for a debt and have a sufficient
connection to the underlying obligation have “consumer” status
for purposes of the North Carolina Debt Collection Act. We find
Defendant’s argument to be persuasive.
A. Standard of Review
3
As a result of their failure to advance any argument
challenging the dismissal of the claims that they had asserted
against Plaintiff under the federal Fair Debt Collection
Practices Act, Defendants have abandoned any claims that they
originally asserted under federal law.
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We have previously discussed the standard of review
utilized in the course of reviewing orders addressing standing-
related issues in Slaughter v. Swicegood, 162 N.C. App. 457,
463-64, 591 S.E.2d 577, 582 (2004), in which we stated that:
[t]he North Carolina Rules of Civil
Procedure require that “every claim shall be
prosecuted in the name of the real party in
interest.” [N.C. Gen. Stat.] § 1A-1, Rule
17(a) (2003). “A real party in interest is
‘a party who is benefited or injured by the
judgment in the case’ and who by substantive
law has the legal right to enforce the claim
in question.” Carolina First Nat’l Bank v.
Douglas Gallery of Homes, 68 N.C. App. 246,
249, 314 S.E.2d 801, 802 (1984) (quoting
Reliance Ins. Co. v. Walker, 33 N.C. App.
15, 18-19, 234 S.E.2d 206, 209 (1977)). A
party has standing to initiate a lawsuit if
he is a “real party in interest.” See
Energy Investors Fund, L.P. v. Metric
Constructors, Inc., 351 N.C. 331, 337, 525
S.E.2d 441, 445 (2000) (citing Krauss v.
Wayne County DSS, 347 N.C. 371, 373, 493
S.E.2d 428, 430 (1997)). A motion to
dismiss a party’s claim for lack of standing
is tantamount to a motion to dismiss for
failure to state a claim upon which relief
can be granted according to Rule 12(b)(6) of
the North Carolina Rules of Civil Procedure.
See Street v. Smart Corp., 157 N.C. App.
303, 305, 578 S.E.2d 695, 698 (2003). An
appellate court should review a trial
court’s order denying a motion for failure
to state a claim “to determine ‘whether, as
a matter of law, the allegations of the
complaint, treated as true, are sufficient
to state a claim upon which relief may be
granted under some legal theory.’” Hargrove
v. Billings & Garrett, Inc., 137 N.C. App.
759, 760, 529 S.E.2d 693, 694 (2000)
(quoting Shell Island Homeowners Ass’n Inc.
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v. Tomlinson, 134 N.C. App. 217, 225, 517
S.E.2d 406, 413 (1999)).
We will now utilize this standard of review in determining
whether the trial court properly dismissed Defendants’
counterclaims.
B. Defendants’ Standing
According to the North Carolina Debt Collection Act,
entities operating as “debt collectors” are prohibited from
engaging in certain activities in the course of their work, such
as using obscene, profane or abusive language, N.C. Gen. Stat. §
75-52(1); calling an individual at his or her place of
employment in violation of an explicit instruction to the
contrary, N.C. Gen. Stat. § 75-52(4); failing to disclose that
the purpose of a particular communication is to collect a debt,
N.C. Gen. Stat. § 75-54(2); erroneously describing the
creditor’s rights or intentions, N.C. Gen. Stat. § 75-54(4);
falsely representing that the debtor may be required to pay
attorneys’ fees, N.C. Gen. Stat. § 75-54(6); and communicating
with any consumer by means other than the transmission of an
account statement after having been notified that the consumer
is represented by counsel, N.C. Gen. Stat. § 75-55(3). However,
“before a claim for unfair debt collection can be substantiated,
three threshold determinations must be satisfied. First, the
obligation owed must be a ‘debt’; second, the one owing the
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obligation must be a ‘consumer’; and third, the one trying to
collect the obligation must be a ‘debt collector.’” Reid v.
Ayers, 138 N.C. App. 261, 263, 531 S.E.2d 231, 233 (2000)
(citing N.C. Gen. Stat. § 75-50(1)-(3)). According to the
relevant statutory provisions, a “consumer” is “any natural
person who has incurred a debt or alleged debt for personal,
family, household or agricultural purposes,” N.C. Gen. Stat. §
75-50(1), with a “debt” being “any obligation owed or due or
alleged to be owed or due from a consumer.” N.C. Gen. Stat. §
75-50(2). An individual or entity is “a debt collector” if he,
she, or it “engag[es], directly or indirectly, in debt
collection from a consumer.” N.C. Gen. Stat. § 75-50(3). As a
result, the ultimate issue raised by Defendants’ challenge to
the dismissal of their counterclaims is the meaning of the term
“consumer” as used in N.C. Gen. Stat. § 75-50(1).
“Legislative intent controls the meaning of a statute; and
in ascertaining this intent, a court must consider the act as a
whole, weighing the language of the statute, its spirit, and
that which the statute seeks to accomplish. The statute’s words
should be given their natural and ordinary meaning unless the
context requires them to be construed differently.” Shelton v.
Morehead Mem’l Hosp., 318 N.C. 76, 81-82, 347 S.E.2d 824, 828
(1986) (citations omitted). According to its plain language,
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N.C. Gen. Stat. § 75-50(1) treats individuals who have incurred
both actual and alleged debts as “consumers.” When this
reference to an “alleged debt” is considered in conjunction with
the fact that N.C. Gen. Stat. § 75-50(2) includes both
“obligation[s] owed or due or alleged to be owed or due from a
consumer” within the statutory definition of a “debt,” it is
clear that the General Assembly contemplated that the
protections available under the North Carolina Debt Collection
Act would be available to both those who actually owed the debt
that the debt collector was seeking to collect and those whom
the debt collector claimed to owe the debt even if the debtor
denied the existence of the underlying obligation. Any other
interpretation of the relevant statutory language would have the
absurd result of making the relevant statutory protections
unavailable to those who had a viable defense to the underlying
claim that the debt collector was seeking to enforce. As a
result of the fact that Defendants sufficiently alleged that
Plaintiff sought to collect the amount owed under the original
contract between Marvin and Mertice Locklear and asserted that
Defendants were liable for that obligation, we believe that
Defendants sufficiently alleged that they were “consumers” for
purposes of N.C. Gen. Stat. § 75-50(1).
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In seeking to persuade us that Defendants do not fall
within the category of “consumers” as defined in N.C. Gen. Stat.
§ 75-50(1), Plaintiffs argues that our decision in Holloway v.
Wachovia Bank & Trust Co., N.A., 109 N.C. App. 403, 428 S.E.2d
453 (1993), aff’d in part, rev’d in part, 339 N.C. 338, 452
S.E.2d 233 (1994), is controlling and required the trial court
to dismiss Defendants’ counterclaims. In Holloway, one of the
plaintiffs obtained a loan, on which she later defaulted, for
the purpose of purchasing a car. Holloway, 109 N.C. App. at
406, 428 S.E.2d at 455. According to the plaintiffs’ complaint,
an agent for the defendant pointed a firearm at the debtor and
various members of her family during the repossession process.
Id. at 406-07, 428 S.E.2d at 455. On appeal, this Court
affirmed the trial court’s decision to dismiss the claims that
had been asserted based upon the pointing of a gun at members of
the debtor’s family on the grounds that, “[a]s this definition
indicates, the legislative intent of the statute is to protect
the consumer, not bystanders or those who happen to accompany
the consumer at the time of an alleged [N.C. Gen. Stat.] Chapter
75, Article 2 violation.” Id. at 413, 428 S.E.2d at 459. We do
not, however, believe that our decision in Holloway has any
bearing on the proper outcome of this case given our conclusion
that Defendants were not mere bystanders. Instead of simply
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standing around while Plaintiff engaged in efforts to collect a
debt from a third party, Defendants were the direct targets of
Plaintiff’s activities. As a result, the trial court’s decision
to dismiss Defendant’s counterclaims cannot be upheld on the
basis of the logic set out in Holloway.
In addition, Plaintiff argues that, given the fact that we
cited the decision of the United States District Court for the
Middle District of North Carolina in Fisher v. Eastern Air
Lines, Inc., 517 F. Supp. 672 (M.D.N.C. 1981), in the course of
discussing the definition of a “consumer” in Holloway, we are
obligated to utilize the rationale employed in Fisher in
deciding the validity of Defendants’ challenge to the trial
court’s order in this case. In Fisher, the plaintiff sought
relief for alleged violations of the North Carolina Debt
Collection Act arising from the defendant’s efforts to collect a
debt from the plaintiff that was, in fact, owed by an individual
with a name that was similar to the plaintiff’s name. Fisher,
517 F. Supp. at 673. In holding that the plaintiff was not a
“consumer” as defined in N.C. Gen. Stat. § 75-50(1), the court
stated that, in order for an individual to be a “consumer,” “he
must have had at least some connection with the underlying debt
or alleged debt” and that the statutory reference to an “alleged
debt” did not encompass “an instance in which a debt collector
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mistakenly identified the person who owed it money or allegedly
owed it money” given the necessity that the “debt” or “alleged
debt” be “incurred.” Id. As a result, the Fisher court held
that the relevant statutory language “does not evidence an
intent by the legislature to provide protection for persons
mistakenly thought to have been the one who incurred an
obligation.” Id.
We are simply unable to read Fisher as narrowly as
Plaintiff does. As we read its decision, the Fisher court
simply held that there must be some connection between the debt
or alleged debt and the individual from whom recovery is sought.
In light of that fact, a simple case of mistaken identity does
not involve the sort of connection between the “consumer” and
the “alleged debt” contemplated by the relevant statutory
language. In this case, however, Defendants are in possession
of the manufactured home that secured the original debt
evidenced by the contract between Marvin and Mertice Locklear,
on the one hand, and Ted Parker, on the other. As a result,
even if we are bound by the logic utilized by the Fisher court,
a subject about which we express no opinion, such a
determination does not necessitate a decision to affirm the
trial court’s order.
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After carefully reviewing the record, we believe that the
facts present in this case closely resemble those underlying the
decision of the United States District Court for the Eastern
District of North Carolina in Redmond v. Green Tree Servicing,
LLC, 941 F. Supp. 2d 694 (E.D.N.C. 2013), in which the debtor
incurred a debt pursuant to a real estate financing agreement.
Redmond, 941 F. Supp. 2d at 695. After the original debtor
died, the property used to secure the debt was left to his wife,
who rented the property to the plaintiffs. Id. Although the
creditor knew that the plaintiffs possessed the property used to
secure the original debt, it never entered into an agreement
with the plaintiffs under which the plaintiffs were made liable
for the underlying debt and never requested the plaintiffs to
assume responsibility for paying the underlying debt. However,
the defendant did attempt to collect the debt from the
plaintiffs on numerous occasions. Id. at 695-96.
Although the defendant in Redmond, like Plaintiff here,
argued that the plaintiffs were not “consumers” as that term is
defined in N.C. Gen. Stat. § 75-50(1) on the grounds that they
“did not actually incur the” debt, id. at 697, the court
rejected that argument, reasoning that “the plain language of
the statute references both alleged debts and alleged debtors”
and stating that “[t]his language would be rendered superfluous
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if the court imposed on plaintiffs an additional requirement
that they demonstrate they themselves actually incurred the
debt.” Id. at 698. In response to the defendant’s argument, in
reliance upon Fisher, “that giving weight and meaning to the
statute’s use of ‘alleged’ would render the statute’s use of
‘incurred’ superfluous,” the Redmond court noted that “the
plaintiff [in Fisher] did not have standing because the debt
collector had attempted to collect from him on the basis of
mistaken identity,” while, in this case, “there [was] a strong
connection between the plaintiffs and the underlying debt” and
“the defendant actively worked to perpetuate the plaintiffs’
impression that they were legally bound by the debt.” Id. As a
result, given the existence of “a strong connection between the
plaintiffs and the underlying debt” and the fact that the debt
collector “actively worked to perpetuate the plaintiffs’
impression that they were legally bound by the debt,” id., the
Redmond court allowed the plaintiff’s claim to proceed. We find
the approach utilized in Redmond persuasive.
In its brief, Plaintiff argues that Redmond is inapplicable
to the present case because no one misled Defendants into
believing that they owed a debt and because, on the contrary,
everyone understood that the underlying debt was owed by Mertice
Locklear’s estate. However, the debt collector in Redmond, like
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Plaintiff, made repeated contacts with Defendants in an attempt
to collect the debt. Id. at 695. In addition, the defendant
before the Court in Redmond, like Plaintiff here, threatened to
lock the plaintiffs out of the home or have them evicted in the
event that the plaintiffs did not make payments against the
underlying obligation. Id. at 696. In addition, Plaintiff’s
agents identified themselves to Defendant Jimmie Locklear as
“your” account manager, allowed Defendants to defer making
monthly payments, and engaged in other actions that were
tantamount to treating Defendants as if they were liable on the
underlying debt. As a result, we are persuaded by the
similarity between the actions taken by the debt collector at
issue in Redmond and the actions taken by Plaintiff in this
instance and conclude that Plaintiff acted in such a manner as
“to perpetuate the plaintiffs’ impression that they were legally
bound by the debt,” id. at 698, despite the fact that Defendants
never officially assumed the original obligation undertaken by
Marvin and Mertice Locklear.
In addition, the record reflects the existence of a strong
connection between Defendants and the underlying debt. The only
connection between the Redmond plaintiffs and the underlying
debt was the fact that the plaintiffs were living on the
property used to secure the underlying debt. Id. at 695.
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Similarly, in this case, Defendants resided in the property that
secured the underlying debt. In addition, Defendant Jimmie
Locklear had an expectancy interest in the manufactured home by
virtue of the residuary clause contained in Mertice Locklear’s
will. Although “mobile homes are considered personal property,”
Patterson v. City of Gastonia, __ N.C. App. __, __, 725 S.E.2d
82, 93, disc. review denied, 366 N.C. 406, 759 S.E.2d 82 (2012),
and although “personal property, both legal and equitable, of a
decedent shall be assets available for the discharge of debts
and other claims against the decedent’s estate,” N.C. Gen. Stat.
§ 28A-15-1(a), N.C. Gen. Stat. § 28A-15-2(a) provides that,
“[s]ubsequent to the death of the decedent and prior to the
appointment and qualification of the personal representative or
collector, the title and the right of possession of personal
property of the decedent is vested in the decedent’s heirs”;
that, “upon the appointment and qualification of the personal
representative or collector, the heirs shall be divested of such
title and right of possession which shall be vested in the
personal representative or collector relating back to the time
of the decedent’s death for purposes of administering the estate
of the decedent”; and that, “if in the opinion of the personal
representative, the personal representative’s possession,
custody and control of any item of personal property is not
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necessary for purposes of administration, such possession,
custody and control may be left with or surrendered to the heir
or devisee presumptively entitled thereto.” As a result of the
fact that Defendant Jimmie Locklear was in possession of the
manufactured home both before and after his appointment as
collector of Mertice Locklear’s estate in 2012 and the fact
that, in the absence of a determination that the manufactured
home needs to be sold in order to pay the debts of the estate,
the property will pass to him under Mertice Locklear’s will,
Defendants clearly have a sufficiently “strong connection” to
the property to afford them standing to maintain their claims
under the North Carolina Debt Collection Act. As a result,
based upon our reading of the relevant statutory language and
the logic of Redmond, 941 F. Supp. 2d at 698 (holding that the
Act “extend[s] to claims by individuals against whom a debt
collector has made purposeful, targeted, and directed attempts
to collect a debt alleged to be owed by the plaintiffs”), which
we find to be persuasive, we hold that Defendants have alleged
sufficient facts to establish their standing to maintain the
claims that they have asserted against Plaintiff under the North
Carolina Debt Collection Act.
III. Conclusion
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Thus, for the reasons set forth above, we conclude that the
trial court erred by concluding that Defendants lacked standing
to maintain a claim based upon alleged violations of the North
Carolina Debt Collection Act. As a result, the trial court’s
order should be, and hereby is, reversed and this case should
be, and hereby is, remanded to the Robeson County Superior Court
for further proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
Judges MCGEE and STEELMAN concur.