Wall v. AutoMoney ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-498
No. COA21-419
Filed 19 July 2022
Richmond County, No. 20 CVS 473
DORIS WALL, PATRICIA SMITH, COREY DAVIS, MARIO ROBINSON, TIMOTHY
SMITH, GLORIA GILLIAM, MICHAEL WADDELL, TERIA BOUKNIGHT, JUNE
BARBOUR, EMMANUEL SMITH, DONQUIS JONES, DIANNE KIRKPATRICK,
ASBURY FORTE, III, ARETHA HAYES and POONAM PATEL, Plaintiffs,
v.
AUTOMONEY, INC., Defendant.
Appeal by Defendant from Order entered 15 January 2021 by Judge Dawn M.
Layton in Richmond County Superior Court. Heard in the Court of Appeals 8
February 2022.
Brown, Faucher, Peraldo & Benson, PLLC, by James R. Faucher and Jeffrey
K. Peraldo, for plaintiffs-appellees.
Womble Bond Dickinson (US) LLP, by Michael Montecalvo and Scott D.
Anderson, and Law Offices of L. W. Cooper Jr., LLC, by Lindsey W. Cooper Jr.,
for defendant-appellant.
HAMPSON, Judge.
Factual and Procedural Background
¶1 Automoney, Inc. (Defendant) appeals from an Order entered 15 January 2021
denying Defendant’s Motion to Dismiss under N.C.R. Civ. P. 12(b)(2), (b)(3) and (b)(6).
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The Record before us—including the factual allegations contained in Plaintiffs’
Complaint—tends to reflect the following:
¶2 Defendant is a South Carolina corporation who makes consumer car title loans
to residents of North Carolina. Plaintiffs are residents of North Carolina who entered
into loan agreements with Defendant in amounts ranging from $621.00 to $3,520.00.
Defendant based the amount of the loan on the value of an individual Plaintiff’s car
and placed a lien on the vehicle to secure the loan. Defendant registered these liens
with the North Carolina Department of Motor Vehicles. Plaintiffs’ loan agreements
included an annual percentage rate (APR) set by Defendant that ranged from 129%
to 229%. All the loan agreements also included a choice-of-law provision that read,
in relevant part:
As Lender is a regulated South Carolina consumer finance
company and you, as Borrower, have entered into this Agreement
in South Carolina, this Agreement shall be interpreted,
construed, and governed by and under the laws of the State of
South Carolina, without regard to conflicts of law rules and
principles . . . that would cause the application of the laws of any
jurisdiction other than the State of South Carolina.1
In 2018, this choice-of-law provision was updated to include a choice-of-venue
provision that stated, in relevant part:
1This language is from the earliest version of the choice-of-law provision. In 2019, Defendant
required customers to sign a completely separate document titled “Attention North Carolina
Customers Acknowledgement of South Carolina Law and Waiver of Claims Form” that
contained a similar choice-of-law provision.
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In the event that any dispute whatsoever arises between the
Parties . . . the Dispute shall be brought exclusively in the courts
of competent jurisdiction located in the State of South Carolina,
and the exclusive jurisdiction of the state and federal courts
located therein. . . .
Ten out of the fifteen Plaintiffs’ agreements included this choice-of-venue provision.
¶3 On 4 June 2020, Plaintiffs filed a Complaint in Richmond County Superior
Court alleging three causes of action against Defendant for violations of N.C. Gen.
Stat. § 53-165 et. seq.—the North Carolina Consumer Finance Act (NCCFA)—, N.C.
Gen. Stat. § 75-1.1—Unfair and Deceptive Trade Practices Act (UDTPA)—, and
alternatively, N.C. Gen. Stat. § 24-1.1, et seq.—Usury. Specifically, Plaintiffs alleged
Defendant violated the NCCFA by charging each Plaintiff annual interest rates that
far exceed the maximum annual rate of interest allowed by the statute; alternatively,
violated the usury laws by soliciting Plaintiffs for the loans, discussing and
negotiating the loans, offering to make Plaintiffs loans, and receiving each Plaintiffs’
acceptance to the loans while Plaintiffs were in the State of North Carolina; and
violated the UDTPA by knowingly extending usurious loans to North Carolina
residents. Plaintiffs sought a declaratory judgment declaring the loans and security
interests thereon to be void and unenforceable and to recover statutory damages in
an amount not in excess of $75,000.00 each.
¶4 Moreover, in their Complaint, Plaintiffs alleged:
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3. This Court has jurisdiction over Defendant pursuant to N.C.
G.S. § 1-75.4 in that at all times relevant to the events and
transactions alleged herein, Defendant, via the internet, cellular
telephone and other media and communication methods solicited,
marketed, advertised, offered, accepted, discussed, negotiated,
facilitated, collected on, threatened enforcement of, and
foreclosed upon automobile title loans with Plaintiffs and other
North Carolina citizens . . . Plaintiffs further allege that, for a
considerable amount of time prior to the events and transactions
with Plaintiffs as alleged herein, Defendant had regular, ongoing,
continuous and systematic contacts with the State of North
Carolina and its citizens . . . such that this Court has personal
jurisdiction over Defendant.
7. Defendant has knowingly and intentionally constructed and
engineered it[s] internet advertising to ensure that Defendant’s
South Carolina office locations appear as internet search results
when a North Carolina consumer conducts an internet search for
a “car title loan” or similar terms.
8. Defendant has purposefully established its business locations
just across the North Carolina-South Carolina state line to avoid
the application of North Carolina law to loan contracts Defendant
enters into with North Carolina residents, such as Plaintiffs.
¶5 On 22 July 2020, Defendant filed a Motion to Dismiss alleging: (1) Defendant
was not subject to personal jurisdiction in North Carolina and the action should be
dismissed pursuant to N.C.R. Civ. P. 12 (b)(2); (2) venue was improper in Richmond
County under N.C.R. Civ. P. 12(b)(3) and the matter was required to be brought in
South Carolina based on the forum selection clause contained in ten out of the fifteen
named Plaintiffs’ loan agreements; and, (3) the Complaint failed to state a claim on
which relief under North Carolina law could be granted under N.C.R. Civ. P. 12(b)(6)
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based on the choice-of-law clauses in the Plaintiffs’ loan agreements. In support of
its Motion to Dismiss, Defendant also filed the Affidavit of Linda Derbyshire,
(Derbyshire) the owner, executive officer, and manager of Defendant. Derbyshire
denied Plaintiffs’ allegations that Defendant solicited, marketed, advertised, offered,
accepted, discussed, negotiated, facilitated, or otherwise made any title loans in
North Carolina. Defendant also attached Plaintiffs’ loan agreements showing the
choice-of-law provisions and forum selection clauses.
¶6 Plaintiffs subsequently filed Affidavits in opposition to Defendant’s Motion to
Dismiss. In these affidavits, Plaintiffs rebuffed Derbyshire’s claim that Defendant
had no contacts with North Carolina. For example, Plaintiffs submitted, inter alia,
an authenticated page from Defendant’s website that specifically targeted North
Carolina residents and claimed to have made “thousands” of loans to North
Carolinians and be the “trusted name in title loans” in North Carolina; an affidavit
from an assistant manager and loan officer for Defendant who stated Defendant
mailed loan solicitation flyers into North Carolina to both current and former
borrowers and regularly engaged in phone conversations with North Carolina
residents regarding Defendant’s loans; an affidavit from the Owner and Managing
Member of the North Carolina publication “Steals & Deals” who—from February
2013 to May 2019—ran a weekly advertisement for Defendant’s title loans to
residents of North Carolina; and a manager of Associates Asset Recovery, LLC, a
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North Carolina business, who recovered 442 motor vehicles for Defendant in North
Carolina over the course of four years.
¶7 On 30 November 2020 Defendant’s Motion to Dismiss came on for hearing and
the trial court denied the Motions to Dismiss by Order entered 15 January 2021.
Defendant filed Notice of Appeal on 10 February 2021.
Appellate Jurisdiction
¶8 Here, the trial court’s Order constitutes three separate interlocutory rulings
denying Defendant’s Motion to Dismiss alleging lack of personal jurisdiction,
improper venue, and failure to state a claim. “Generally, the denial of a motion to
dismiss is not immediately appealable to this Court because it is interlocutory in
nature.” McClennahan v. N.C. School of the Arts, 177 N.C. App. 806, 808, 630 S.E.2d
197, 199 (2006) (citation and quotation omitted). “An interlocutory order is one made
during the pendency of an action, which does not dispose of the case, but leaves it for
further action by the trial court in order to settle and determine the entire
controversy.” Id. “However, N.C. Gen. Stat. § 1-277 allows a party to immediately
appeal an order that either (1) affects a substantial right or (2) constitutes an adverse
ruling as to personal jurisdiction.” Id.¶9 First, the denial of Defendant’s Motion asserting lack of personal jurisdiction
is clearly immediately appealable under Section 1-277(b). See Cohen v. Cont’l Motors,
Inc., 279 N.C. App. 123, 2021-NCCOA-449, ¶ 16-17, disc. rev. denied, 868 S.E.2d 859WALL V. AUTOMONEY, INC.
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(2022); see also A.R. Haire, Inc. v. St. Denis, 176 N.C. App. 255, 257–58, 625 S.E.2d
894, 898 (2006) (“[M]otions to dismiss for lack of personal jurisdiction affect a
substantial right and are immediately appealable”).
¶ 10 Second, we have previously recognized an order denying a motion based on
improper venue and which asserts venue is proper elsewhere may affect a substantial
right. Thompson v. Norfolk & Southern Ry., 140 N.C. App. 115, 121-122, 535 S.E.2d
397, 401 (2000). Likewise, orders addressing the validity of a forum selection clause
also affect a substantial right. US Chem. Storage, LLC v. Berto Constr., Inc., 253
N.C. App. 378, 381, 800 S.E.2d 716, 719 (2017). Thus, Defendant’s appeal from the
denial of its motion based on improper venue is also properly before us.
¶ 11 Third, immediate appealability of the denial of Defendant’s Motion to Dismiss
under Rule 12(b)(6) based on the assertion of a choice-of-law clause is less clear.
Nevertheless, in several other cases involving choice-of-law related issues, this Court
has elected to review the matter under writ of certiorari. Harco Nat. Ins. Co. v. Grant
Thornton LLP, 206 N.C. App. 687, 691, 698 S.E.2d 719, 722 (2010); Stetser v. TAP
Pharm. Prod., Inc., 165 N.C. App. 1, 12, 598 S.E.2d 570, 579 (2004); United Virginia
Bank v. Air-Lift Assocs., Inc., 79 N.C. App. 315, 319, 339 S.E.2d 90, 92 (1986).
Defendant here has also filed a Petition for Writ of Certiorari in the event we
determine there is no immediate right to appeal. Given our prior practice, the fact
the choice of law issue is substantially related to the issue of venue as well as, to a
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lesser extent, personal jurisdiction which are both properly before us, and the fact
that all three issues address vital preliminary questions impacting both this litigation
and other related litigation pending in our Courts which would benefit from an early
decision on these threshold matters, in our discretion we grant Defendant’s Petition
for Writ of Certiorari to ensure our appellate jurisdiction over the entirety of
Defendant’s appeal and turn to the merits of the appeal.
Issues
¶ 12 The issues on appeal are whether the trial court erred by denying Defendant’s
Motion to Dismiss pursuant to North Carolina Rules of Civil Procedure: (I) 12(b)(2)
for lack of personal jurisdiction when Defendant purposefully availed itself of the
privilege of doing business in North Carolina; (II) 12(b)(6) for failure to state a claim
when Plaintiffs’ claims are based on North Carolina law and Plaintiffs’ loan contracts
contain a choice-of-law provision stating South Carolina law should apply; and (III)
12(b)(3) for improper venue when Plaintiffs filed suit in Richmond County, North
Carolina, despite the inclusion of a forum selection clause in Plaintiffs’ loan contracts
stating suits should be brought in South Carolina and the fact that only two out of
fifteen Plaintiffs resided in Richmond County.
Analysis
I. Personal Jurisdiction
A. Standard of Review
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¶ 13 “The standard of review to be applied by a trial court in deciding a motion
under Rule 12(b)(2) depends upon the procedural context confronting the court.”
Banc of Am. Secs. LLC v. Evergreen Int’l Aviation, Inc., 169 N.C. App. 690, 693, 611
S.E.2d 179, 182 (2005).
Typically, the parties will present personal jurisdiction issues in
one of three procedural postures: (1) the defendant makes a
motion to dismiss without submitting any opposing evidence; (2)
the defendant supports its motion to dismiss with affidavits, but
the plaintiff does not file any opposing evidence; or (3) both the
defendant and the plaintiff submit affidavits addressing the
personal jurisdiction issues.
Id. In this case, the parties submitted dueling affidavits and other discovery
materials in support of their respective jurisdictional arguments; therefore, this case
falls into the third category. See id.¶ 14 If the parties “submit dueling affidavits[,] . . . the court may hear the matter
on affidavits presented by the respective parties, . . . [or] the court may direct that
the matter be heard wholly or partly on oral testimony or depositions.” Id. at 694,
611 S.E.2d at 183 (second and third alterations in original; citations and quotation
marks omitted); see also Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612,
615, 532 S.E.2d 215, 217 (2000) (“If the exercise of personal jurisdiction is challenged
by a defendant, a trial court may hold an evidentiary hearing including oral testimony
or depositions or may decide the matter based on affidavits.” (citation omitted)). In
addition, where “defendants submit some form of evidence to counter plaintiffs’
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allegations, those allegations can no longer be taken as true or controlling and
plaintiffs cannot rest on the allegations of the complaint.” Bruggeman, 138 N.C. App.
at 615-16, 532 S.E.2d at 218 (citations omitted).
¶ 15 Where the trial court elects to decide the motion to dismiss on competing
affidavits, “the plaintiff has the initial burden of establishing prima facie that
jurisdiction is proper. Of course, this procedure does not alleviate the plaintiff’s
ultimate burden of proving personal jurisdiction at an evidentiary hearing or at trial
by a preponderance of the evidence.” Id. at 615, 532 S.E.2d at 217 (citations omitted).
“If the trial court chooses to decide the motion based on affidavits, the trial judge
must determine the weight and sufficiency of the evidence presented in the affidavits
much as a juror.” Banc of Am. Secs. LLC, 169 N.C. App. at 694, 611 S.E.2d at 183(alterations, citation, and quotation marks omitted).
¶ 16 Thus, in this context, “[t]he standard of review of an order determining
personal jurisdiction is whether the findings of fact by the trial court are supported
by competent evidence in the record[.]” Bell v. Mozley, 216 N.C. App. 540, 543, 716
S.E.2d 868, 871 (2011) (second alteration in original; quotation marks omitted)
(quoting Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139, 140-41, 515 S.E.2d
46, 48 (1999)). “We review de novo the issue of whether the trial court’s findings of
fact support its conclusion of law that the court has personal jurisdiction over
defendant.” Id. (citation omitted).
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¶ 17 The North Carolina Supreme Court has held
that a two-step analysis must be employed to determine whether
a non-resident defendant is subject to the in personam
jurisdiction of our courts. First, the transaction must fall within
the language of the State’s “long-arm” statute. Second, the
exercise of jurisdiction must not violate the due process clause of
the fourteenth amendment to the United States Constitution.
Tom Togs, Inc. v. Ben Elias Indus. Corp., 318 N.C. 361, 364, 348 S.E.2d 782, 785
(1986) (citations omitted). In this case, the parties appear to agree North Carolina’s
“long-arm” statute is applicable to this case. Indeed, the parties focus on the question
of whether the exercise of personal jurisdiction in this case is consistent with the Due
Process Clause of the Fourteenth Amendment.
B. Specific Personal Jurisdiction
¶ 18 The Supreme Court of the United States recently addressed the issue of a state
court’s authority to assert personal jurisdiction over an out-of-state Defendant under
the Fourteenth Amendment in Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141
S. Ct. 1017, 209 L. Ed. 2d 225 (2021). “The Fourteenth Amendment’s Due Process
Clause limits a state court’s power to exercise jurisdiction over a defendant.” Id. at
1024, 209 L. Ed. at 233. Our courts “recogniz[e] two kinds of personal jurisdiction:
general . . . jurisdiction and specific . . . jurisdiction.” Id. (citing Goodyear Dunlop
Tires Operations, S. A. v. Brown, 564 U.S. 915, 919, 180 L. Ed. 2d 796, 803 (2011)).
Specific jurisdiction “covers defendants less intimately connected with a State, but
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only as to a narrower class of claims. The contacts needed for this kind of jurisdiction
often go by the name ‘purposeful availment.’ ” Id. (citing Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 475, 85 L. Ed. 2d 528, 542 (1985)). “The defendant . . . must
take ‘some act by which [it] purposefully avails itself of the privilege of conducting
activities within the forum State.’ ” Id. (bracket in original) (quoting Hanson v.
Denckla, 357 U.S. 235, 253, 2 L. Ed. 2d 1283, 1298 (1985)). “The contacts must be the
defendant’s own choice and not ‘random, isolated, or fortuitous.’ ” Id. at 1025, 209 L.
Ed. 2d at 234 (citation omitted). “The[se] [contacts] must show that the defendant
deliberately ‘reached out beyond’ its home—by, for example, ‘exploi[ting] a market’ in
the forum State or entering a contractual relationship centered there.’ ” Id. (second
bracket in original) (quoting Walden v. Fiore, 571 U.S. 277, 285, 188 L. Ed. 2d 12, 20
(2014)). See also, Travelers Health Ass’n v. Va., 339 U.S. 643, 647, 94 L. Ed. 1154,
1161 (1950) (concluding “where business activities reach out beyond one state and
create continuing relationships and obligations with citizens of another state,” a
business has consented to jurisdiction in the latter state.). “Yet even then . . . the
forum State may exercise jurisdiction in only certain cases. The plaintiff’s claims . .
. ‘must arise out of or relate to the defendant’s contacts’ with the forum.” Id. (quoting
Bristol-Myers Squibb Co. v. Superior Ct. of Cal., San Francisco Cty., 137 S. Ct. 1773,
1780, 198 L. Ed. 2d 395, 403 (2017)).
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¶ 19 For example, in Travelers Health Association v. Virginia, the United States
Supreme Court held Virginia could properly exercise jurisdiction over a Nebraska
corporation where the defendant did not engage in mere isolated or short-lived
transactions, but rather, systematically and widely entered into contracts with
citizens of Virginia. 339 U.S. at 648, 94 L. Ed. at 1161. In rendering its decision, the
Court considered the following significant facts: at the time of the suit, the defendant
had 800 contracts with Virginia citizens; the defendant sent targeted mail
solicitations to Virginians; new members obligated themselves to pay periodic
assessments; the defendant had a referral system whereby members could refer other
Virginia citizens; the defendant could enter the state to investigate claims for losses;
and the Virginia courts were available to them in seeking to enforce obligations
created by the insurance policies. Id.
¶ 20 Here, the trial court’s Findings of Fact, which are supported by the competent
evidence found in Plaintiffs’ Affidavits, show, just as in Travelers, the Defendant had
substantial contacts with North Carolina. For example, the trial court found:
Defendant holds itself out as having made “thousands” of loans to North Carolinians;
calls potential borrowers who are located in North Carolina; offers loans over the
phone to North Carolinians and receives acceptances of its loan offers by telephone
from North Carolinians; instructs North Carolinians to travel out of state to its stores;
creates continuing obligations between itself and borrowers in North Carolina;
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perfects security interests using the North Carolina Division of Motor Vehicles; pays
borrowers to refer new borrowers from North Carolina; sends written solicitations
into North Carolina; makes collections calls into North Carolina; and directs others
to enter into North Carolina to take possession of collateral motor vehicles.
¶ 21 Thus, applying Ford and Travelers, it is not unreasonable to subject Defendant
to suit in North Carolina because Defendant deliberately and systematically ‘reached
out beyond’ South Carolina to enter into loan agreements with thousands of North
Carolina citizens. See Ford Motor Co., 141 S. Ct. at 1025, 209 L. Ed. 2d at 234.
Therefore, the trial court appropriately concluded the exercise of personal jurisdiction
in North Carolina over Defendant does not offend the Due Process Clause of the
Fourteenth Amendment. Consequently, the trial court did not err in denying
Defendant’s Motion under Rule 12(b)(2) of the North Carolina Rules of Civil
Procedure.
II. Choice-of-Law Provision and Failure to State a Claim
¶ 22 Next, Defendant contends the trial court erred in denying Defendant’s Motion
to Dismiss under Rule 12(b)(6). Defendant argues Plaintiffs’ contracts contain a
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choice-of-law provision mandating the application of South Carolina law and, thus,
precluding Plaintiff’s claims arising from North Carolina law.2
¶ 23 “The test on a motion to dismiss for failure to state a claim upon which relief
can be granted is whether the pleading is legally sufficient.” Shoffner Indus., Inc. v.
W. B. Lloyd Constr. Co., 42 N.C. App. 259, 263-264, 257 S.E.2d 50, 54 (1979). “A
complaint may be dismissed on motion filed under Rule 12(b)(6) if it is clearly without
merit; such lack of merit may consist of an absence of law to support a claim of the
sort made . . .” Id. “For the purpose of a motion to dismiss, the allegations of the
complaint are treated as true.” Id.¶ 24 “Historically, parties have endeavored to avoid potential litigation concerning
judicial jurisdiction and the governing law by including in their contracts provisions
concerning these matters.” Johnston Cty. v. R.N. Rouse & Co., 331 N.C. 88, 92, 414
S.E.2d 30, 33 (1992). “Although the language used may differ from one contract to
another, one or more of three types of provisions (choice of law, consent to jurisdiction,
and forum selection), which have very distinct purposes, may often be found in the
boilerplate language of a contract.” Id. “[A] choice of law provision, names a
particular state and provides that the substantive laws of that jurisdiction will be
2 Defendant, at this stage, seems to accept for purposes of this appeal that if North Carolina
law applies then Plaintiffs’ Complaint is sufficient to state a claim for relief. Therefore, we
do not address the adequacy of Plaintiffs’ Complaint as it relates to the underlying claims.
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used to determine the validity and construction of the contract, regardless of any
conflicts between the laws of the named state and the state in which the case is
litigated.” Id. “The parties’ choice of law is generally binding on the interpreting
court as long as they had a reasonable basis for their choice and the law of the chosen
State does not violate a fundamental policy of the state of otherwise applicable law.”
Behr v. Behr, 46 N.C. App. 694, 696, 266 S.E.2d 393, 395 (1980). Further, “not all
[contract] provisions cover extra-contractual statutory claims.” Strange v. Select
Mgmt. Res., LLC, 2021 U.S. Dist. LEXIS 121076, *24, 2021 WL 2649269 (M.D.N.C.
Oct. 17, 2019) (unpublished). It follows that where claims are brought under statutes
reflective of fundamental North Carolina policy, a choice-of-law provision which has
the effect of attempting to avoid such claims is not binding on a trial court. See
Shwarz v. St. Jude Med., Inc., 254 N.C. App. 747, 754, 802 S.E.2d 783, 789 (2017)
(“[O]ur courts have not honored choice-of-law provisions in contracts when
application of the law of the chosen state would be contrary to a fundamental policy
of a state which has a materially greater interest than the chosen state in the
determination of the particular issue and which . . . would be the state of applicable
law in the absence of an effective choice of law by the parties.” (citation and quotation
omitted)). Cf. Burke Cty. Pub. Sch. Bd. of Educ. v. Shaver P’ship, 303 N.C. 408, 423,
279 S.E.2d 816, 825 (1981) (Holding choice-of-law provision attempting to preclude
application of the Federal Arbitration Act invalid because “[t]o allow the parties to
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contract away the application of the Act . . . would be inconsistent with the Act
itself.”).
¶ 25 In this case, Plaintiffs have brought extra-contractual statutory claims under
the NCCFA, the UDTPA, and alternatively, North Carolina usury law. We address
each of these claims in turn.
1. Violation of the NCCFA
¶ 26 The NCCFA makes unenforceable any “loan contract made outside this State
in the amount or of the value of fifteen thousand dollars ($15,000) or less, for which
greater consideration or charges than those authorized by N.C.G.S. § 53-173 and
N.C.G.S. § 53-176 have been charged, contracted for, or received.” N.C. Gen. Stat. §
53-190(a) (2021). Lenders may only avoid application of the NCCFA if “all
contractual activities, including solicitation, discussion, negotiation, offer,
acceptance, signing of documents, and delivery and receipt of funds, occur entirely
outside North Carolina.” N.C. Gen. Stat. § 53-190(a) (2021). Moreover, in enacting
the most recent version of the NCCFA our state legislature recognized:
new schemes continue to be devised in order to circumvent the
lending laws of North Carolina and to avoid regulation by the
Commissioner of Banks. It is the intent of the General Assembly
that [the NCCFA] should be construed broadly to prohibit illicit
lending schemes and to clarify the devices, subterfuges, and
pretenses that are prohibited . . .
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An Act to Clarify the Application of the North Carolina Consumer Finance Act to
Various Lending Subterfuges, S.L. 2006-243, § 1, 2006 N.C. Sess. Laws 1038, 1038.
¶ 27 Here, Defendant has attempted to avoid application of North Carolina law, and
in particular here application of the NCCFA, by including a choice-of-law provision
in their loan agreements and by requiring Plaintiffs to drive to South Carolina to sign
the loan documents and receive the funds. However, the NCCFA expressly states the
law is to be applied to loans made outside the state unless all contractual activities
occur entirely outside of the state. Indeed, in this case, Plaintiffs have made specific
allegations—which solely for the purpose of this appeal we treat as true—to show
Defendant has conducted contractual activities within the state, rendering the
NCCFA applicable. For example, Plaintiffs alleged Defendant solicited, discussed,
and negotiated the terms of loan agreements, used the DMV to perfect their security
interest, and repossessed cars in North Carolina.
¶ 28 Despite Defendant’s arguments to the contrary seeking to avoid application of
the NCCFA, for the purpose of this claim, to enforce the choice-of-law provision at
this stage of the proceeding,3 would violate the stated fundamental public policy of
3 As this case proceeds, there may well be facts to show Defendant did not conduct any
contractual activities within North Carolina, and thus, the NCCFA would not apply. Indeed,
the trial court seemed to recognize this possibility and expressly stated: “This Order denying
Defendant’s Rule 12(b)(6) motion is without prejudice to the Court making a determination
of any choice of law issue in the future based upon a more complete evidentiary record.”
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North Carolina to broadly construe and apply the NCCFA to cover loan contracts
made outside this state. See N.C. Gen. Stat. § 53-190(a). Thus, the trial court did not
err by declining to enforce the choice-of-law clause to bar Plaintiffs’ NCCFA claim.
Therefore, Plaintiff’s Complaint—to the extent the NCCFA provides a private citizen
a cause of action4—states a claim under North Carolina law. Consequently, the trial
court properly denied Defendant’s Motion to Dismiss the NCCFA claim.
2. Violation of the UDTPA
¶ 29 N.C. Gen. Stat. § 75-1.1 (2021) states:
Unfair methods of competition in or affecting commerce, and
unfair or deceptive acts or practices in or affecting commerce, are
declared unlawful.
The legislative history of the UDTPA, as succinctly explained by Broussard v.
Meineke Discount Muffler Shops, indicates the legislature intended for the statute to
be broadly applied in order to protect citizens of North Carolina.
Prior to 1977, section 75-1.1 was specifically limited to ‘dealings
within this state.’ North Carolina’s General Assembly deleted the
geographical limitation in 1977. Courts interpreted the
legislature’s action as a desire to expand the scope of section 75-
1.1 to the limits of North Carolina’s long-arm statute, N.C. Gen.
Stat. § 75.4(4). Thus, section 75-1.1 applies if the plaintiff alleges
a substantial injurious effect on [a] plaintiff . . . in North Carolina.
4 An issue not before us.
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Broussard v. Meineke Discount Muffler Shops, 945 F. Supp. 901, 917 (W.D.N.C. 1996)
(citation and quotation marks omitted). See also, Bhatti v. Buckland, 328 N.C. 240,
245, 400 S.E.2d 440, 443-44 (1991) (“The wording of the statute and its purpose is
broad and section (b), on its face, extends the statute to commercial dealings between
persons at all levels of commerce.”). Moreover, our Supreme Court has previously
concluded “violations of statutes designed to protect the consuming public and
violations of established public policy may constitute unfair and deceptive practices.”
Stanley v. Moore, 339 N.C. 717, 723, 454 S.E.2d 225, 228 (1995). Indeed, this Court
has consistently held defendants who offer usurious loans to residents of North
Carolina commit unfair and deceptive trade practices as a matter of law. See State
of N.C. v. NCCS Loans, 174 N.C. App. 630, 641, 624 S.E.2d 371, 378 (2005); Odell v.
Legal Bucks, LLC, 192 N.C. App. 298, 320, 665 S.E.2d 767, 781 (2008).
¶ 30 Here, Plaintiffs have alleged sufficient facts—which we treat as true for
purpose of the 12 (b)(6) Motion—to show Defendant’s acts in or affecting commerce
have a substantial injurious effect on citizens in North Carolina by depriving them of
the protection of North Carolina usury law. See Broussard, 945 F. Supp. at 917. For
example, Plaintiffs alleged Defendant “knew or should have known that each Plaintiff
was a North Carolina resident and held a North Carolina title on their vehicle,” but
nevertheless, entered into loan agreements with each Plaintiff “at an annual interest
rate that far exceeds the lawful rate of interest in North Carolina.” Moreover,
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Plaintiffs alleged “Defendant purposefully established its business locations just
across the North Carolina-South Carolina state line to avoid the application of North
Carolina law to contracts . . .” and “required the execution of the written title loan
agreements at issue in South Carolina in bad faith with the specific purpose and
intent of evading the usury laws of North Carolina.”
¶ 31 Therefore, despite Defendant’s effort to avoid the application of North
Carolina law, for the purposes of Plaintiffs’ UDTPA claim, to enforce the choice-of-
law provisions would violate the inherent public policy of North Carolina to broadly
construe the UDTPA in order to provide a private cause of action for injured North
Carolina consumers. See Broussard, 945 F. Supp. at 917. Thus, the trial court did
not err by concluding Plaintiffs’ Complaint contains sufficient allegations to support
a claim under the UDTPA despite the inclusion of a choice-of-law provision in
Plaintiffs’ contracts stating South Carolina law should apply. Consequently, the trial
court did not err by denying Defendant’s Motion to Dismiss pursuant to 12(b)(6).
3. Usury Claim
¶ 32 The North Carolina usury statute states: “any extension of credit shall be
deemed to have been made in this State, and therefore subject to the provisions of
this Chapter if the lender offers or agrees in this State to lend to a borrower who is a
resident of this State, or if such borrower accepts or makes the offer in this State to
borrow, regardless of the situs of the contract as specified therein.” N.C. Gen. Stat. §
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24-2.1(a) (2021). Moreover, the statute expressly states: “[i]t is the paramount public
policy of North Carolina to protect North Carolina resident borrowers through the
application of North Carolina interest laws.” N.C. Gen. Stat. § 24-2.1(g) (2021).
¶ 33 Here, Plaintiffs alleged:
as to one, some or all Plaintiffs, Defendant engaged in solicitations
and made oral offers to lend that were received in North Carolina[.]
As to one, some or all Plaintiffs, Defendant received solicitations or
communications from Plaintiffs that originated in North Carolina for
Plaintiffs to borrow.
Thus, here too, because Plaintiffs have alleged sufficient facts to show Plaintiffs’ loan
contracts are subject to the application of North Carolina usury law, to enforce the
choice-of-law provision would violate the stated public policy of North Carolina to
protect North Carolina resident borrowers through the application of North Carolina
usury laws. Therefore, the trial court did not err by concluding Plaintiffs adequately
alleged claims under North Carolina usury law applicable to the loan agreements in
this case for purposes of a Motion to Dismiss. Consequently, the trial court did not
err in denying Defendant’s Motion to Dismiss for failure to state a claim.
III. Proper Venue & Forum Selection Clause
¶ 34 Defendant contends the trial court erred by denying its Motion to Dismiss
pursuant to North Carolina Rule of Civil Procedure 12 (b)(3) because ten out of fifteen
of Plaintiffs’ loan agreements contain a forum selection clause mandating disputes
“in relation to or in any way in connection with the Agreements . . . be brought
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exclusively in the courts of competent jurisdiction located in South Carolina.”5 Thus,
according to Defendant, the forum selection clause mandates venue was only proper
in South Carolina. Moreover, Defendant contends Richmond County is not a proper
venue because “none of the Plaintiffs except Doris Wall, Patricia Smith, and Michael
Waddell are residents of Richmond County.”
A. Standard of Review
¶ 35 “A party may move to change venue based on several grounds under the
applicable statute, N.C. Gen. Stat. § 1-83, and our standard of review is dependent
upon the particular ground alleged by the movant.” Lowrey v. Choice Hotels Int’l,
Inc., 279 N.C. App. 107, 2021-NCCOA-436, ¶ 19 (unpublished).
¶ 36 Generally, our Court reviews a trial court’s order denying a motion to dismiss
for improper venue in cases involving a forum selection clause under the abuse of
discretion standard.6 SED Holding, LLC v. 3 Star Props., LLC, 246 N.C. App. 632,
636, 784 S.E.2d 627, 630 (2016). “The test for abuse of discretion requires the
5 This Court has recognized “a forum selection clause designates the venue and therefore a
motion to dismiss for improper venue pursuant to Rule 12(b)(3) would be most applicable.”
Hickox v. R&G Group Int’l, 161 N.C. App. 510, 511, 588 S.E.2d 566, 567 (2003). “The motion
should accordingly be treated as one to remove the action, not dismiss it.” Id. (citing Coats
v. Hospital, 264 N.C. 332, 141 S.E. 2d 490 (1965)).
6 The standard for reviewing “a trial court’s interpretation of a forum selection clause is an
issue of law that is reviewed de novo.” US Chem. Storage, LLC v. Berto Constr., Inc., 253
N.C. App. 378, 382, 800 S.E.2d 716, 720 (2017) (emphasis added). However, this Court
applies an abuse of discretion standard when the trial court issues an order regarding the
enforceability of the clause under a Rule 12(b)(3) motion. See SED Holding, LLC v. 3 Star
Props., LLC, 246 N.C. App. 632, 636, 784 S.E.2d 627, 630 (2016)
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reviewing court to determine whether a decision ‘is manifestly unsupported by
reason’ or ‘so arbitrary that it could not have been the result of a reasoned decision.’
” Appliance Sales & Serv. v. Command Elecs. Corp., 115 N.C. App. 14, 22, 443 S.E.2d
784, 789 (1994) (citing Little v. Penn Ventilator, Inc., 317 N.C. 206, 218, 345 S.E.2d
204, 212 (1986)). However, if a party moves for change of venue on the basis that the
plaintiff brought suit in the wrong county, the motion and order entered thereon
concern a question of law we review de novo. Stern v. Cinoman, 221 N.C. App. 231,
232, 728 S.E.2d 373, 374 (2012).
B. Enforceability of the Forum Selection Clause
¶ 37 “A forum selection provision designates a particular state or court as the
jurisdiction in which the parties will litigate disputes arising out of the contract and
their contractual relationship.” Johnston Cty., 331 N.C. at 93, 414 S.E.2d at 33.
“Forum selection clauses do not deprive the courts of jurisdiction but rather allow a
court to refuse to exercise that jurisdiction in recognition of the parties’ choice of a
different forum.” Id. Generally, a forum selection clause should be enforced unless
the contract is a product of fraud or unequal bargaining power, enforcement of the
clause would be unreasonable or unfair, or enforcement of the clause would
contravene a strong public policy of the forum in which suit is brought. The Bremen
v. Zapata Off-Shore Co., 407 U.S. 1, 15, 32 L. Ed. 2d 513, 523 (1972). For contracts
entered into in North Carolina, “forum selection clauses . . . are generally disfavored,
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‘against public policy,’ and ‘void and unenforceable’ unless they appear in ‘non-
consumer loan transactions.’ ” SED Holding, LLC, 246 N.C. App. at 637, 784 S.E.2d
at 631. Indeed, N.C. Gen. Stat. § 22B-3 generally prohibits enforceability of a forum
selection clause:
. . . in a contract entered into in North Carolina that requires the
prosecution of any action or the arbitration of any dispute that
arises from the contract to be instituted or heard in another state
is against public policy and is void and unenforceable. This
prohibition shall not apply to non-consumer loan transactions or
to any action or arbitration of a dispute that is commenced in
another state pursuant to a forum selection provision with the
consent of all parties to the contract at the time that the dispute
arises.
N.C. Gen. Stat. § 22B-3 (2021).
¶ 38 We address the applicability of the forum selection clause under each claim.
1. NCCFA Claim
¶ 39 As discussed above, the NCCFA expressly applies to loans made outside this
state unless all contractual activities including solicitation, discussion, negotiation,
offer, acceptance, signing of documents, and delivery and receipt of funds occur
entirely outside of North Carolina. N.C. Gen. Stat. § 53-190(a) (2021). Therefore,
since Defendant—at a minimum—solicited in North Carolina, the NCCFA applies.
Moreover, the NCCFA, by its terms, evinces a clear public policy that loans to which
it applies should be subject to oversight in North Carolina. Enforcement of the forum
selection clause despite the clear application of the NCCFA to Plaintiffs’ loan
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contracts would run counter to this policy. Thus, for the purpose of Plaintiffs’ NCCFA
claim, to enforce the forum-selection clause would violate the inherent public policy
of North Carolina, as reflected in the NCCFA, to regulate loan contracts made
elsewhere if some form of contractual activity took place in North Carolina.
Therefore, the forum selection clause is rendered unenforceable as against public
policy. Consequently, the trial court did not abuse its discretion in denying
Defendant’s Motion to Dismiss for improper venue.
2. UDTPA Claim
¶ 40 In determining whether, for the purposes of the UDTPA claim, enforcement of
the forum selection clause would contravene a strong public policy of North Carolina,
we consider the purposes underlying the protections provided by the UDTPA. The
General Assembly initially stated the purpose of section 75-1.1 as follows:
The purpose of this section is to declare, and to provide civil legal
means to maintain, ethical standards of dealings between persons
engaged in business and between persons engaged in business
and the consuming public within this State to the end that good
faith and fair dealings between buyers and sellers at all level[s]
of commerce be had in this State.
N.C. Gen. Stat. § 75-1.1 (1975) (emphasis added). Indeed, even after the law was
amended in 1977, our Supreme Court reiterated: “[t]he law was enacted ‘to establish
an effective private cause of action for aggrieved consumers in this State.’ ” Bhatti v.
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Buckland, 328 N.C. 240, 245, 400 S.E.2d 440, 443 (1991) (emphasis added) (citing
Marshall v. Miller, 302 N.C. 539, 543, 276 S.E.2d 397, 400 (1981)).
¶ 41 Here, for the purpose of the UDTPA claim, enforcement of the forum selection
would defeat the original purpose of the law by requiring aggrieved consumers to
bring a cause of action outside of this State. Thus, insofar as Plaintiffs have a claim
under the UDTPA, to enforce the forum selection clause, would violate the public
policy of this state to provide a private cause of action to citizens within North
Carolina. Therefore, the trial court did not abuse its discretion by refusing to enforce
the forum selection clause for the purpose of the UDTPA.
3. Usury Claim
¶ 42 N.C. Gen. Stat. §22B-3 renders a contract “entered into in North Carolina that
requires the prosecution of any action . . . to be instituted or heard in another state [
] against public policy and [ ] void and unenforceable.” N.C. Gen. Stat. §22B-3 (2021)
(emphasis added). Generally, “the test of the place of a contract is as to the place at
which the last act was done by either of the parties essential to a meeting of minds.”
Bundy v. Commercial Credit Co., 200 N.C. 511, 515, 157 S.E. 860, 862 (1931)
(citations omitted). For written contracts, the last act essential to the formation of
the contract is the affixation of the final signature. Szymczyk v. Signs Now Corp.,
168 N.C. App. 182, 187, 606 S.E.2d 728, 733 (2005).
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¶ 43 However, N.C. Gen. Stat. § 24-2.1(a) modifies this general rule, and for the
purpose of a usury law claim, deems a loan agreement:
to have been made in this State, and therefore subject to the
provisions of this Chapter if the lender offers or agrees in this
State to lend to a borrower who is a resident of this State, or if
such borrower accepts or makes the offer in this State to borrow,
regardless of the situs of the contract as specified therein.
N.C. Gen. Stat. § 24-2.1(a) (2021) (emphasis added).
¶ 44 Indeed, Plaintiffs’ Complaint contains facts to show that their contracts meet
the definition of a contract deemed “to have been made in this State.” For example,
the Complaint alleges while some of the Plaintiffs were in North Carolina, Defendant
discussed the terms of the loans with some of the Plaintiffs including the specific loan
amount and asked if the Plaintiff wanted to obtain the loan. If the Plaintiff said yes,
Defendant would tell the Plaintiff to drive to South Carolina with the proper
documentation. Thus, since Defendant offered the loan to Plaintiffs and Plaintiffs
verbally accepted the terms of the loan while they were in North Carolina, under N.C.
Gen. Stat. § 24-2.1, the loan agreements would be deemed to have been made in North
Carolina. See N.C. Gen. Stat. § 24-2.1(b) (2021) (“Any solicitation or communication
to lend, oral or written, originating outside of this State, but forwarded to and
received in this State by a borrower who is a resident of this State, shall be deemed
to be an offer or agreement to lend in this State.”). Therefore, for the purposes of the
usury law claim, since the contracts are deemed to have been entered into in North
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Carolina, N.C. Gen. Stat. § 22B-3 renders the clause unenforceable as against public
policy. See N.C. Gen. Stat. § 22B-3 (2021).
¶ 45 Moreover, even presuming N.C. Gen. Stat. § 22B-3 does not apply to render
the forum selection clause unenforceable, North Carolina usury law makes clear that
“[i]t is the paramount public policy of North Carolina to protect North Carolina
resident borrowers” from usurious loans. N.C. Gen. Stat. § 24-2.1(g). Therefore, for
the purpose of Plaintiffs’ usury law claim, to enforce the forum-selection clause would
violate the stated fundamental public policy of North Carolina “to protect North
Carolina resident borrowers” as it would divest North Carolina of the opportunity to
enforce their laws and protect its citizens. Consequently, the forum selection clause
is rendered unenforceable as against public policy. Thus, the trial court did not abuse
its discretion in denying Defendant’s Motion to Dismiss for improper venue.
C. Venue in Richmond County, North Carolina
¶ 46 Venue “is defined as ‘the proper or a possible place for a lawsuit to proceed,
usually because the place has some connection either with the events that gave rise
to the lawsuit or with the plaintiff or defendant.’ ” Stokes v. Stokes, 371 N.C. 770,
773, 821 S.E.2d 161, 163 (2018) (quoting Venue, Black’s Law Dictionary (10th ed.
2014)). “It has long been understood that venue is regulated by statute.” Osborne v.
Redwood Mt., LLC, 275 N.C. App. 144, 148, 852 S.E.2d 699, 702 (2020). “However,
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there are specific venue statutes for only a limited number of actions.” Id. Thus,
unless subject to a venue statute of more specific application,
[i]n all other cases the action must be tried in the county in which
the plaintiffs or the defendants, or any of them, reside at its
commencement, or if none of the defendants reside in the State,
then in the county in which the plaintiffs, or any of them, reside .
..
N.C. Gen. Stat. § 1-82 (2021).
¶ 47 Here, Plaintiffs’ claims are not subject to a venue statute of more specific
application, and thus, N.C. Gen. Stat. § 1-82 applies. Under this statute—contrary
to Defendant’s contention—only one of the Plaintiffs was required to reside in
Richmond County on 4 June 2020 when the Complaint was filed because Defendant
is not a resident of North Carolina, and all the Plaintiffs reside in North Carolina.
Thus, the trial court did not err by concluding “venue was proper in Richmond County
because at least one Plaintiff was (and remains) a resident of Richmond County at
the time the matter was filed.” Consequently, the trial court did not err in denying
Defendant’s Motion to Dismiss for lack of venue.
Conclusion
¶ 48 Accordingly, for the foregoing reasons, we affirm the trial court’s Order
denying Defendant’s Motion to Dismiss pursuant to Rules 12(b)(2), 12(b)(3), and
12(b)(6).
AFFIRMED.
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Judges WOOD and GORE concur.