First Union National Bank of North Carolina v. Tectamar, Inc.

235 S.E.2d 894 (1977)

FIRST UNION NATIONAL BANK of North Carolina, a National Bank
v.
TECTAMAR, INC., a North Carolina Corporation, George E. Becker, Joy D. Becker, Ewald L. Mertens, Bertha H. Mertens, Clyde T. Gasperson, Faye W. Gasperson, Harold L. Cogdill, Frank Machesky and Jackie Machesky.

No. 7628SC898.

Court of Appeals of North Carolina.

July 6, 1977.

McGuire, Wood, Erwin & Crow by Charles R. Worley, Asheville, for the plaintiff.

Long, McClure & Dodd by Jeff P. Hunt, Asheville, for the defendants.

MARTIN, Judge.

Defendants contend that testimony of the price paid by Peco for the collateral was inadequate and raises a genuine issue of fact as to whether the foreclosure sale was commercially unreasonable. We disagree. Defendant offered no testimony that the sale was commercially unreasonable in any other way. G.S. 25-9-507(2) provides:

"The fact that a better price could have been obtained by a sale . . . in a different method from that selected by the secured party is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner."

Defendants' contention that the plaintiff conducted the foreclosure sale improperly has merit. Plaintiff's own testimony and affidavits show that it has violated G.S. 25-9-504(1) and (2) by paying off senior liens out of the proceeds of the sale. This was not a reasonable expense of sale. Plaintiff's violation of G.S. 25-9-504(1) and (2) in failing to apply the proceeds of the sale to the satisfaction of Tectamar's indebtedness, upon which defendants were guarantors, raises a genuine issue of fact as to the amount plaintiff is entitled to recover on a deficiency judgment. See Credit Co. v. Concrete Co., 31 N.C.App. 450, 229 S.E.2d 814 (1976); see Hodges v. Norton, 29 N.C.App. 193, 223 S.E.2d 848 (1976).

We hold that summary judgment was improperly entered.

Reversed.

BROCK, C. J., and HEDRICK, J., concur.