White v. Lemon Tree Inn of Raleigh, Inc.

ARNOLD, Judge.

We reject plaintiffs’ contention that the trial court erred in granting defendant’s motion for summary judgment.

One of the two types of cases in which summary judgment is said to be appropriate is one “where only a question of law on the indisputable facts is in controversy and it can be appropriately decided without full exposure of trial.” McNair v. Boyette, 282 N.C. 230, 235, 192 S.E. 2d 457, 460 (1972). We believe that the present case is of this type, and that the trial court correctly granted defendant’s motion for summary judgment.

Plaintiffs argue that the action by the trustee, defendant Rouse, was illegal. Their primary complaint is that the trustee failed to require a deposit from the highest bidder, Central National Bank, and that he also failed to require cash payment of the purchase price. Defendant admitted that Central National Bank made no deposit on its bid, and that no cash was received from the sale.

The law as to the requirement of a cash deposit is spelled out in G.S. 45-21.10:

“(a) If a mortgage or deed of trust contains provisions with respect to a cash deposit at the sale, the terms of the instrument shall be complied with.

“(b) If the instrument contains no provision with respect to a cash deposit at the sale, the mortgagee or trustee holding the sale of real property MAY require the highest bidder immediately to make a cash deposit not to exceed ten percent (10%) of the amount of the bid up to and including one thousand dollars ($1,000), plus five percent (5%) of any excess over one thousand dollars ($1,000).” [Emphasis added.]

The deed of trust in the instant case provided:

“The trustee MAY require the successful bidder at any sale to deposit immediately with the trustee cash or certified check in an amount not to exceed ten percent (10°/o) of his bid, provided notice of such requirement is contained in the advertisement of sale.” [Emphasis added.]

Obviously, by the instrument itself, the trustee had discretion as to whether he would require a deposit from the successful bidder. The trustee’s advertisement for the sale which stated that the “highest bidder will be required to make a cash deposit . . .” did not eliminate the trustee’s exercise of discretion as to whether he would require the cash deposit.

No authority is presented in support of plaintiffs’ other contention that the trustee’s closing of the sale with a credit instead of cash amounted to a breach of the trustee’s duty. We find no support for this position and reject it.

Having determined that summary judgment for defendant was properly entered we see no need for further discussion of plaintiffs’ assignments of error. Summary judgment in favor of defendant Rouse is

Affirmed.

Judges Morris and Hedrick concur.