Binning's, Inc. v. ROBERTS CONSTRUCTION COMPANY

177 S.E.2d 1 (1970) 9 N.C. App. 569

BINNING'S, INC.
v.
ROBERTS CONSTRUCTION COMPANY, Inc., Bobby R. Roberts and Ruby M. Roberts.

No. 7022SC536.

Court of Appeals of North Carolina.

October 21, 1970.

C. Horton Poe, Jr., Durham, for defendant appellants.

Walser, Brinkley, Walser & McGirt, by Walter F. Brinkley, Lexington, for plaintiff appellee.

HEDRICK, Judge.

The exceptions in the record present the question of whether the facts admitted in the record support the conclusions of law made by the court, and whether the court committed error in entering judgment that the plaintiff recover as reasonable attorneys' fees 15% of the balance due on the note.

G.S. § 6-21.2, in part, provides:

"Obligations to pay attorneys' fees upon any note, conditional sale contract or other evidence of indebtedness, in addition to the legal rate of interest or finance charges specified therein, shall be valid and enforceable, and collectible as part of such debt, if such note, contract or other evidence of indebtedness be collected by or through an attorney at law after maturity, * * *."

G.S. § 6-21.2(5), in pertinent part, provides:

"The holder of an unsecured note * * * shall, after maturity of the obligation by default or otherwise, notify the maker * * * that the provisions relative to payment of attorneys' fees in addition to the ``outstanding balance' shall be enforced and that such maker * * * has five days from the mailing of such notice to pay the ``outstanding balance' without the attorneys' fees. If such party shall pay the ``outstanding balance' in full before the expiration of such time, then the obligation to pay the attorneys' fees shall be void * * *."

The defendants contend that before the plaintiff would be entitled to collect reasonable attorneys' fees in this action the notice as provided in G.S. § 6-21.2(5) must have been given by the plaintiff to the defendants prior to the institution of the action. We do not agree.

The only requirement in the statute as to when notice is to be given is that it be given "* * * after maturity of the obligation by default or otherwise * * *." We do not construe this to mean that the notice must be given prior to the institution of the action.

The letter mailed by the plaintiff's attorneys to the defendants on 2 April 1970 was sufficient compliance with G.S. § 6-21.2(5) and gave the defendants an opportunity to pay the balance of the note without incurring the additional expenses of paying reasonable attorneys' fees.

G.S. § 6-21.2(2) provides:

"If such note, conditional sale contract or other evidence of indebtedness provides for the payment of reasonable attorneys' fees by the debtor, without specifying any specific percentage, such provision shall be construed to mean fifteen percent (15%) of the ``outstanding balance' owing on said note, contract or other evidence of indebtedness."

G.S. § 6-21.2(3) provides:

"As to notes and other writing(s) evidencing an indebtedness arising out of a loan of money to the debtor, the ``outstanding balance' shall mean the principal and interest owing at the time suit is instituted to enforce any security agreement securing payment of the debt and/or to collect said debt."

Having concluded as a matter of law that the plaintiff had complied with the provisions of G.S. § 6-21.2(5) with respect to notice, and since the note in the instant case provided for the payment of reasonable attorneys' fees by the debtor, without specifying any specific percentage, the court properly allowed the plaintiff to recover as reasonable attorneys' fees 15% of the balance due on the note together with 15% of the interest due on the note at the time suit was instituted.

The judgment appealed from is affirmed.

Affirmed.

MALLARD, C. J., and PARKER, J., concur.