Whitmire v. First Federal Savings & Loan Ass'n of Hendersonville , 23 N.C. App. 39 ( 1974 )

PARKER, Judge.

The court properly denied defendants’ motion for summary judgment. In their answer defendants alleged that at the time Croft-Gesner, Inc. was place in receivership, First Federal had inspected the properties involved and was preparing to make final disbursements of the loan proceeds and to execute and deliver the check for $15,000.00 to the Bank. However, from the affidavit filed by plaintiffs in opposition to defendants’ motion for summary judgment, it is evident that genuine issues of fact exist as to whether, at the time Croft-Gesner, Inc. was placed in receivership, the houses had been completed or whether they were thereafter completed by someone else. This affidavit further discloses that a genuine issue of fact may exist as to whether the $15,000.00 loan was made by the Bank to Robert Croft as an individual rather than to Croft-Gesner, Inc., and as to whether Croft-Gesner, Inc. had authority to pledge the First Federal loan proceeds as security for the $15,000.00 Bank loan. Until these issues of fact are resolved in defendants’ favor, defendants would not be entitled to judgement on the merits as a matter of law. Nor were defendants entitled to summary judgment on their plea of res judicata. Examination of Judge Thornburg’s order of 26 February 1973 which furnished the basis of defendants’ plea reveals that, in addition to denying the receivers’ motion, it directed First Federal not to disburse any remaining loan proceeds in its hands, “until the controversy involved is adjudicated or terminated according to law.” Thus, the order did not purport to be an adjudication on the merits but expressly left the merits of the matter open for future adjudication. We see no reason why the present litigation is not an appropriate proceeding for that purpose. In any event, it is clear that Judge Thornburg’s order does not foreclose this and that defendants were not entitled to summary judgment on their plea of res judicata. In the denial of defendants’ motion for summary judgment we find no error.

We do find error, however, in the allowance of plaintiffs’ motion for judgment on the pleadings and in the order directing First Federal to deliver the remaining proceeds from the construction loans to the receivers. It is true that by express statutory provision “[a] 11 of the real and personal property of an insolvent corporation, wheresoever situated, and all its franchises, rights, privileges and effects, upon the appointment of a receiver, forthwith vest in him, and the corporation is divested of the title thereto.” G.S. 1-507.3. However, “[i]n the very nature of things, the receiver takes the property of the insolvent debtor subject to the mortgages, judgments, and other liens existing at the time of his appointment.” Surety Corp. v. Sharpe, 236 N.C. 35, 50, 72 S.E. 2d 109, 123 (1952). In the present case, defendants have alleged in their answer that at the time the receivers were appointed, such right as the insolvent corporation had in the undisbursed balances of the construction loans was subject to an assignment to the Bank to secure the payment to it of the $15,000.00 loan. A valid assignment may be made of money to become due in the future, Wike v. Guaranty Co., 229 N.C. 370, 49 S.E. 2d 740 (1948) ; Bank v. Jackson, 214 N.C. 582, 200 S.E. 444 (1939), and we see no reason why defendants are precluded from attempting to prove a valid assignment in this case. Whether they can successfully do so, and whether and in what manner the rights of the parties may be affected by the provisions of Article 9 of the Uniform Commercial Code, G.S. 25-9-101 et seq., can only be determined after the evidence is presented. We hold only that it was error to grant judgment for the plaintiffs on the pleadings.

Insofar as the order appealed from denies defendants’ motion for summary judgment, it is affirmed. Insofar as it grants plaintiffs’ motion for judgment on the pleadings and insofar as it directs First Federal to pay the balance of the construction loan proceeds to plaintiffs, it is reversed.

Affirmed in part.

Reversed in part.

Judges Campbell and Hedrick concur.