Phil Mechanic Construction Co. v. Gibson , 30 N.C. App. 385 ( 1976 )

226 S.E.2d 837 (1976) 30 N.C. App. 385

PHIL MECHANIC CONSTRUCTION CO.
v.
John B. GIBSON and wife, Ursula Gibson.

No. 7628DC227.

Court of Appeals of North Carolina.

August 4, 1976.

Gray, Kimel & Connolly by David G. Gray, Jr., Asheville, for plaintiff-appellee.

John I. Jay, Waynesville, for defendants-appellants.

CLARK, Judge.

Defendants admitted the execution of the contract as alleged by plaintiff, but in their further answer alleged that the box headed "Statement of Transaction", which included interest and attorney fee provisions was left blank. Construing the defendants' answer with liberality, we find that defendants admit that they executed the written contract attached to their answer and designated "Exhibit B", which left blank the box designated "Statement of Transaction", except for the blank following "Cash Price" which was filled in with the figure $2,215.00".

Unquestionably, summary judgment against the defendants and for the plaintiff in the principal amount of $2,215.00 was proper. However, since defendants denied in their answer that the contract provision relating to finance charges and attorneys' fees were filled in when they executed the contract, the pleadings raised genuine issues of material fact, and summary judgment under G.S. 1-1A, Rule 56(c) on these two issues should not have been rendered. There was nothing offered by plaintiff to show that it gave the defendants the notice of their obligation to pay attorney fees as required by G.S. 6-21.2(5).

The trial court properly refused to consider defendants' counterclaim for failure of the plaintiff to disclose the finance charge required by the Truth in Lending Act, 15 U.S.C. § 1638(a). In Enterprises, Inc. v. Neal, 29 N.C.App. 78, 223 S.E.2d 831 (1976), this Court held that a claim for penalties under 15 U.S.C. § 1640(a) may not be raised as a counterclaim in the creditor's action for the unpaid balance on the debt.

Affirmed in part and Reversed in part and the cause is Remanded.

MORRIS and VAUGHN, JJ., concur.