Troublefield v. AutoMoney ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-497
No. COA21-421
Filed 19 July 2022
Scotland County, No. 20 CVS 322
BECKY TROUBLEFIELD, Plaintiff,
v.
AUTOMONEY, INC., Defendant.
Appeal by Defendant from orders entered 19 January 2021 and 1 February
2021 by Judge Stephan R. Futrell in Scotland County Superior Court. Heard in the
Court of Appeals 8 February 2021.
Brown, Faucher, Peraldo & Benson, PLLC, by Jeffrey K. Peraldo and James R.
Faucher, for Plaintiff-Appellee.
Womble Bond Dickinson (US) LLP, by Michael Montecalvo and Scott D.
Anderson; L.W. Cooper Jr., LLC, by Lindsey W. Cooper, Jr, for Defendant-
Appellant.
WOOD, Judge.
¶1 AutoMoney, Inc. (“Defendant”) appeals from an order denying its motion to
dismiss under N.C. Gen. Stat. § 1A-1 Rule 12(b)(3) and another order denying its
motion to dismiss under N.C. Gen. Stat. § 1A-1 Rule 12(b)(6). On appeal, Defendant
contends the trial court erred by 1) not enforcing the choice-of-law provisions
contained within its loan agreements; 2) not enforcing its loan agreements forum
selection clause; and 3) determining minimum contacts existed to render personal
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jurisdiction over it. Defendant petitions this Court by writ of certiorari to review the
trial court’s denial of its motion to dismiss under Rule 12(b)(6). In our discretion, we
grant Defendant’s writ of certiorari. After careful review of the record and applicable
law, we affirm the orders of the trial court.
I. Factual and Procedural Background
¶2 This dispute arises out of a car title loan agreement Defendant made with
Becky Troublefield (“Plaintiff”). Defendant is a licensed South Carolina corporation
with its principal place of business in Charleston, South Carolina. Defendant makes
loans to individuals, which are secured by motor vehicles, commonly known as “car
title loans.” Defendant is a supervised lender under South Carolina law, and its
consumer lending activities are regulated by the South Carolina State Board of
Financial Institutions, Consumer Finance Division.
¶3 Plaintiff is a resident of Scotland County, North Carolina. In 2017, Plaintiff
received an advertisement flier at her home in North Carolina from Defendant
advertising its loan services. Upon receipt of the flier, Plaintiff called Defendant from
North Carolina to inquire about a loan. Plaintiff spoke with one of Defendant’s
employees who asked her about the year, make, model, mileage, and condition of her
vehicle. During the phone call, Defendant’s employee told Plaintiff based upon her
description of her vehicle, Defendant could provide her a loan in the amount of at
least $1,000.00. When asked by the employee if she wanted the loan, Plaintiff
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responded in the affirmative. Plaintiff was directed by the employee to drive to one
of Defendant’s stores in South Carolina with her car, car title, a paycheck stub, and
proof of residency.
¶4 On March 31, 2020, Plaintiff traveled to Defendant’s Bennettsville, South
Carolina office. Upon reviewing Plaintiff’s loan application and inspecting her vehicle
to determine the amount of the loan, Defendant offered Plaintiff a higher amount for
a loan than was initially discussed on the phone. At the South Carolina office,
Plaintiff finalized and signed a loan agreement, presented her vehicle for an appraisal
and inspection, and received a loan for $2,200.00 at an interest rate of 159%.
¶5 Plaintiff’s loan agreement with Defendant contained both a choice of law and
choice of venue provision that read, in relevant part:
This Loan Agreement, Promissory Note, and Security
Agreement (the “Agreements”) are entered into by and
between Creditor/Lender (“Lender”) and Borrower/Debtor
and Co-Borrower (collectively, the “Borrowers” or “you”) in
South Carolina as of the above date, subject to the terms
and conditions set forth herein and any and all
representations Borrowers have made to Lender in
connection with these agreements. You acknowledge and
agree you voluntarily entered into South Carolina, you
entered into the Agreements in South Carolina, the
Agreements are to be performed in South Carolina, and the
lender is a regulated South Carolina consumer finance
company. Therefore, the Agreements shall be interpreted,
construed, and governed by and under the laws of South
Carolina, without regard to conflict of law principles
(whether of South Carolina or any other jurisdiction) that
would cause the application of the laws of any jurisdiction
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other than South Carolina. In the event that any dispute
whatsoever arises between Lender and Borrowers in
relation to or in any way in connection with the
Agreements (a “Dispute”), the Dispute shall be brought
exclusively in the courts of competent jurisdiction located
in South Carolina, and the Agreements are subject to the
exclusive jurisdiction of the state and federal courts located
in South Carolina. The parties, knowingly, voluntarily,
and irrevocably consent to jurisdiction and venue in South
Carolina and waive any arguments as to forum non
conveniens.
¶6 Plaintiff also signed a separate document entitled in bold and in caps,
“ATTENTION NORTH CAROLINA CUSTOMERS ACKNOWLEDGMENT OF
SOUTH CAROLINA LAW AND WAIVER OF CLAIMS FORM.” This form states:
The Borrower and/or the Co-Borrower is a resident of
North Carolina or the vehicle subject to the Agreements is
registered in North Carolina. In the section titled
“Applicable Law, Jurisdiction, Venue” on page 1 of the
Agreements . . . the Borrowers acknowledge and agree that
they voluntarily entered into the State of South Carolina,
they entered into the Agreements in the State of South
Carolina, the Agreements are to be performed in South
Carolina, and Lender is a regulated South Carolina
consumer finance company. Borrowers separately initialed
this section of the Agreements expressly agreeing that, in
light of the above, the Agreements shall exclusively be
interpreted, construed, and governed by and under the
laws of the State of South Carolina. Because only South
Carolina law applies to the Agreements, the Borrowers
hereby explicitly waive, forfeit and release any and all
demands, causes of action, actions, suits, damages, claims,
counterclaims, and liabilities whatsoever arising under the
laws or statutes of North Carolina or any other state than
South Carolina relating to the Agreements.
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¶7 In order to secure the loan, Defendant utilized a third-party electronic title
storage company to place a lien on Plaintiff’s vehicle with the North Carolina
Department of Motor Vehicles. Thereafter, Plaintiff proceeded to make loan
payments to Defendant over the phone. Plaintiff made these calls from North
Carolina, and Defendant received the payments at one of its South Carolina office
locations.
¶8 On May 18, 2020, Plaintiff filed a complaint against Defendant in Scotland
County Superior Court alleging three causes of action against Defendant for
violations of N.C. Gen. Stat. § 53-165 et. seq.—the North Carolina Consumer Finance
Act (NCCFA)—, N.C. Gen. Stat. § 75-1.1.—Unfair and Deceptive Trade Practices Act
(UDTPA)—, and alternatively, N.C. Gen. Stat. § 24-1.1, et. seq.—North Carolina
usury laws.
¶9 In response, Defendant filed motions to dismiss pursuant to N.C. Gen. Stat. §
1A-1, Rule 12(b)(2) and Rule 12(b)(6).1 Defendant alleged it was not subject to
jurisdiction in North Carolina, Plaintiff’s claims should be dismissed due to the forum
selection clause in the contract, and Plaintiff cannot state claims for which relief can
1 The record does not contain a copy of Defendant’s motion to dismiss under Rule
12(b)(3). Notwithstanding, the trial court judge at the hearing on January 11, 2021,
Defendant “made a motion under Rule 12(b)(3) to dismiss based on improper venue . . . .”
Plaintiff, in her brief, conceded Defendant filed a motion to dismiss pursuant to Rule
12(b)(3). Both parties briefed and addressed their respective arguments concerning
Defendant’s Rule 12(b)(3) motion. Thus, in our discretion we presume Defendant filed a
Rule 12(b)(3) motion and address it herein.
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be granted. In support of its Motion to Dismiss, Defendant filed an affidavit by Linda
Derbyshire, (“Derbyshire”) the owner, executive officer, and manager of Defendant.
Derbyshire stated that Defendant is not registered to do business in North Carolina
and never has been; does not make title loans in North Carolina; does not maintain
offices in North Carolina; does not have a representative agent in North Carolina;
and does not have a mailing address or telephone number in North Carolina.
According to Derbyshire, Defendant does not advertise through radio, television, or
billboards within North Carolina, does not directly market into North Carolina, and
those loans can only be entered into and executed at one of Defendant’s physical
offices in South Carolina. Derbyshire attested that the “only way a loan payment can
be made is via one of [Defendant’s] South Carolina locations with payments [to] be
accepted in person, by mail, or by card over the phone.”
¶ 10 Derbyshire stated that Defendant maintains a website which is accessible by
anyone, regardless of their residency, but the website prevents customers from
submitting loan applications over the internet. Additionally, this website’s homepage
states: “Title loan transactions are prohibited with the State of North Carolina,” and
before anyone may enter the website, they must read the terms and conditions which
state the same. As part of their motion to dismiss, Defendant also attached Plaintiff’s
loan agreement showing the choice of law provision and forum selection clause.
¶ 11 Subsequently, Plaintiff filed affidavits in opposition to Defendant’s motion.
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Plaintiff submitted an authenticated page from Defendant’s website featuring an
advertisement specifically addressing North Carolina residents:
Are you a North Carolina resident? We’ve got you covered!
You are just a short drive away from getting the cash you
need! Do you live in the Charlotte area? What about
Fayetteville or Wilmington? How about Hendersonville,
Lumberton, Monroe, or Rockingham? There is a [sic]
[AutoMoney] Title Loans right across the border with a
professional and courteous staff ready to help you get the
cash you need. Is it worth the drive? Our thousands of
North Carolina customers would certainly say it is.
¶ 12 Moreover, a former assistant manager for Defendant attested that “during
certain times of the year [Defendant] . . . would mail loan solicitation flyers into North
Carolina” and mailed the materials to current and former borrowers. The affidavit
of John Simmons, the owner of Steals & Deals Southeastern LLC [Steals & Deals],
an advertisement magazine headquartered and primarily published in North
Carolina, stated that from February 2013 through May 2019, Defendant ran a weekly
advertisement within the magazine.2 Affidavits from customers of Defendant, who
were also North Carolina residents, attested to viewing television advertisements for
Defendant and contacting Defendant while in North Carolina. A manager of
Associates Asset Recovery, LLC, a North Carolina business, stated that between
2 According to Simmons, Steals & Deals “is distributed in the following North
Carolina counties: Harnett, Cumberland, Hoke, Robeson, Scotland, Richmond, Anson,
Moore and Lee, and also in Chesterfield, Marlboro, Dillon and Darlington Counties in
South Carolina.
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January 1, 2016 to October 7, 2020, the business recovered 442 motor vehicles in
North Carolina for Defendant.
¶ 13 On January 14, 2021, the trial court denied Defendant’s Rule 12(b)(3) motion
and concluded that the forum selection clause was unenforceable. On January 26,
2021, the trial court denied Defendant’s Rules 12(b)(2) and 12(b)(6) motions and
concluded that the court’s exercise of personal jurisdiction over Defendant was
constitutionally reasonable. On February 18, 2021, Defendant filed written notice of
appeal from the trial court’s two orders denying its motions to dismiss. Defendant
also petitions this court by writ of certiorari to review the trial court’s denial of its
Rule 12(b)(6) motion to dismiss.3
II. Appellate Jurisdiction
¶ 14 As a preliminary matter, we note an order denying a motion to dismiss is an
interlocutory order and thus not immediately appealable. Can Am South, LLC v.
State, 234 N.C. App. 119, 122, 759 S.E.2d 304, 307 (2014) (quoting Reid v. Cole, 187
N.C. App. 261, 263, 652 S.E.2d 718, 719 (2007)); see Veazey v. City of Durham, 231
N.C. 357, 362, 57 S.E.2d 377, 381 (1950) (“An interlocutory order is one made during
the pendency of an action, which does not dispose of the case, but leaves it for further
3 On September 23, 2021, Plaintiff filed a motion with this Court to dismiss
Defendant’s appeal pertaining to the trial court’s denial of its Rule 12(b)(6) motion.
Plaintiff also requested an expedited ruling. This motion was referred to this panel.
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action by the trial court in order to settle and determine the entire controversy.”). A
party may not appeal from “an interlocutory order or ruling of the trial judge unless
such ruling or order deprives the appellant of a substantial right which he would lose
if the ruling or order is not reviewed before final judgment.” North Carolina
Consumers Power, Inc. v. Duke Power Co., 285 N.C. 434, 437, 206 S.E.2d 178, 181
(1974) (citations omitted); see also N.C. Gen. Stat. § 1-277 (2021). Therefore, since
Defendant’s appeal from the trial court’s orders denying its motion to dismiss is
interlocutory, we first determine whether this appeal affects a substantial right.
¶ 15 Regarding Defendant’s Rule 12(b)(2) motion, “motions to dismiss for lack of
personal jurisdiction affect a substantial right and are immediately appealable.” A.R.
Haire, Inc. v. St. Denis, 176 N.C. App. 255, 257-58, 625 S.E.2d 894, 898 (2006)
(citations omitted); see N.C. Gen. Stat. § 1-277(b) (“Any interested party shall have
the right of immediate appeal from an adverse ruling as to the jurisdiction of the
court over the person or property of the defendant . . . .”); Can Am South, LLC, 234
N.C. App. at 122, 759 S.E.2d at 307; State ex rel. Cooper v. Ridgeway Brands Mfg.,
LLC, 188 N.C. App. 302, 304, 655 S.E.2d 446, 448 (2008). Thus, Defendant’s appeal
from the order denying its Rule 12(b)(2) motion is properly before us on appeal.
¶ 16 Likewise, the denial of Defendant’s motion to dismiss under Rule 12(b)(3)
affects a substantial right and may be immediately appealed. Capital Bank, N.A. v.
Cameron, 231 N.C. App. 326, 329, 753 S.E.2d 153, 155 (2013) (citing Cable Tel Servs.
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v. Overland Contr., 154 N.C. App. 639, 641, 574 S.E.2d 31, 33 (2002) (“[C]ase law
establishes firmly that an appeal from a motion to dismiss for improper venue based
upon a jurisdiction or venue selection clause dispute deprives the appellant of a
substantial right that would be lost.”)). As such, Defendant’s appeal from the trial
court’s order denying its Rule 12(b)(3) motion is properly before us.
¶ 17 Turning next to Defendant’s Rule 12(b)(6) motion, Defendant petitions this
Court by a writ of certiorari to review the denial of its motion. We have held “it is an
appropriate exercise of this Court’s discretion to issue a writ of certiorari in an
interlocutory appeal where there is merit to an appellant’s substantive arguments,
and it is in the interests of justice to treat an appeal as a petition for writ of certiorari.”
Cryan v. Nat'l Council of YMCA of the United States, 280 N.C. App. 309, 2021-
NCCOA-612, ¶ 17 (cleaned up) (quoting Zaliagiris v. Zaliagiris, 164 N.C. App. 602,
606, 596 S.E.2d 285, 289 (2004)). Particularly, we have issued a writ of certiorari
when the issue in question is significant, important, and will promote judicial
economy. Id. at ¶ 18. The issue raised by Defendant’s motion to dismiss under Rule
12(b)(6) in the present case is significant as it raises the critical question of whether
our State’s legislation prohibiting predatory title lending constitutes a fundamental
public policy. Likewise, granting Defendant’s petition for writ of certiorari will
promote judicial economy as this appeal represents one of thirty-two proceedings
against Defendant in North Carolina courts, seven of which are currently before this
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Court. Therefore, in our discretion, we grant Defendant’s petition for writ of
certiorari to review its motion to dismiss under Rule 12(b)(6).
III. Discussion
¶ 18 Defendant raises several issues on appeal. Each will be addressed in turn.
A. Personal Jurisdiction
¶ 19 Defendant first contends the trial court erred by denying its Rule 12(b)(2)
motion to dismiss. We disagree.
¶ 20 This Court utilizes a two-step analysis to determine whether personal
jurisdiction exists over a non-resident defendant: “First, the transaction must fall
within the language of the State’s long-arm statute. Second, the exercise of
jurisdiction must not violate the due process clause of the fourteenth amendment to
the United States Constitution.” Banc of Am. Sec. LLC, 169 N.C. App. at 693, 611
S.E.2d at 182 (cleaned up) (citing Tom Togs, Inc. v. Ben Elias Industries Corp., 318
N.C. 361, 364, 348 S.E.2d 782, 785 (1986)); see Lab. Corp. of Am. Holdings v. Caccuro,
212 N.C. App. 564, 566, 712 S.E.2d 696, 699 (2011). But see Tom Togs, Inc., 318 N.C.
at, 365, 348 S.E.2d at 785 (“We have also held in considering N.C.G.S. § 1-75.4 that
the requirements of due process, not the words of the long-arm statute, are the
ultimate test of jurisdiction over a non-resident defendant.”). Because Defendant
does not challenge on appeal the applicability of our long-arm statute, we confine our
analysis to whether the trial court’s conclusion that it had personal jurisdiction over
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Defendant violated the requirements of due process.
¶ 21 The Due Process Clause of the Fourteenth Amendment to the United States
Constitution “prevents states from rendering valid judgments against nonresidents.”
In re F.S.T.Y., 374 N.C. 532, 534, 843 S.E.2d 160, 162 (2020) (citing World-Wide
Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S. Ct. 559, 564, 62 L. Ed. 2d
490, 497 (1980)). A defendant must “be given adequate notice of the suit . . . and be
subject to the personal jurisdiction of the court[] . . . .” World-Wide Volkswagen Corp.,
444 U.S. at 291, 100 S. Ct. 564, 62 L. Ed. 2d at 497; accord In re F.S.T.Y., 374 N.C. at
534, 843 S.E.2d at 162.
¶ 22 Under the Due Process Clause, minimum contacts must exist between the
forum state and nonresident such that “the maintenance of the suit does not offend
traditional notions of fair play and substantial justice.” Tom Togs, Inc., 318 N.C. at
365, 348 S.E.2d at 786 (cleaned up and emphasis added) (quoting Int’l Shoe Co. v.
Wash., 326 U.S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95, 102 (1945)). In other words,
“there must be some act by which the defendant purposefully avails himself of the
privilege of conducting activities within the forum state, thus invoking the benefits
and protections of its laws.” Id.; see also World-Wide Volkswagen Corp., 444 U.S. at
297, 100 S. Ct. at 567, 62 L. Ed. 2d at 501 (“[I]t is that the defendant’s conduct and
connection with the forum State are such that he should reasonably anticipate being
haled into court there.”); Cherry Bekaert & Holland v. Brown, 99 N.C. App. 626, 632,
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394 S.E.2d 651, 655 (1990). However, “our minimum contacts analysis looks to the
defendant’s contacts with the forum State itself, not the defendant’s contacts with
persons who reside there.” Walden v. Fiore, 571 U.S. 277, 285, 134 S. Ct. 1115, 1122,
188 L. Ed. 2d 12, 20 (2014) (internal quotation marks omitted).
¶ 23 There are two types of personal jurisdiction recognized by our Supreme Court
sufficient for establishing minimum contacts: general and specific jurisdiction. Beem
USA Limited-Liability Ltd. P’ship v. Grax Consulting, LLC, 373 N.C. 297, 303, 838
S.E.2d 158, 162 (2020). “General jurisdiction is applicable in cases where the
defendant’s affiliations with the State are so continuous and systematic as to render
them essentially at home in the forum State.” Id. (internal quotations marks omitted)
(quotation omitted); see also Lab. Corp. of Am. Holdings, 212 N.C. App. at 569, 712
S.E.2d at 701 (“General jurisdiction may be asserted over a defendant even if the
cause of action is unrelated to defendant’s activities in the forum as long as there are
sufficient continuous and systematic contacts between defendant and the forum
state.” (internal quotation marks omitted)). Specific jurisdiction exists when “the
controversy arises out of the defendant’s contacts with the forum state . . . .” Tom
Togs, Inc., 318 N.C. at 366, 348 S.E.2d at 786; Beem USA Limited-Liability Ltd.
P’ship, 373 N.C. at 303-04, 838 S.E.2d at 162.
¶ 24 In the case sub judice, Plaintiff asserts Defendant is subject to a suit in North
Carolina under specific jurisdiction. As such, our analysis is limited to whether this
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State has specific jurisdiction over Defendant. A specific jurisdiction inquiry analyzes
“the relationship among the defendant, the forum state, and the cause of action . . . .”
Tom Togs, Inc., 318 N.C. at 366, 348 S.E.2d at 786; see Banc of Am. Sec. LLC, 169
N.C. App. at 696, 611 S.E.2d at 184. “For a State to exercise jurisdiction consistent
with due process, the defendant’s suit-related conduct must create a substantial
connection with the forum State.” Walden, 571 U.S. at 284, 134 S. Ct. at 1121, 188
L. Ed. 2d at 20. This Court has established several factors to consider when
evaluating whether minimum contacts exist: “(1) the quantity of the contacts; (2) the
nature and quality of the contacts; (3) the source and connection of the cause of action
with those contacts; (4) the interest of the forum state; and (5) the convenience to the
parties.” A.R. Haire, Inc. v. St. Denis, 176 N.C. App. 255, 260, 625 S.E.2d 894, 899
(2006) (citation omitted); see Sherlock v. Sherlock, 143 N.C. App. 300, 304, 545 S.E.2d
757, 761 (2001); Bruggeman v. Meditrust Acquisition Co., 138 N.C. App. 612, 617, 532
S.E.2d 215, 219; Cherry Bekaert & Holland, 99 N.C. App. at 632, 394 S.E.2d at 655.
¶ 25 The evidence presented in this present case shows Defendant’s conduct created
a substantial connection to North Carolina. Defendant contacted Plaintiff by sending
her a publication to her North Carolina residence, soliciting her business; discussing
the terms of the loan with her over the phone; offering her a loan amount over the
phone; and accepting payments from Plaintiff while she was in North Carolina. In
addition to its contact with this State through Plaintiff, Defendant contacted this
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State through the following methods: 1) online advertisements directed towards
North Carolina residents; 2) advertisements in Steals & Deals, a local North Carolina
publication which primarily advertises therein; 3) telephone calls between Defendant
and North Carolina residents; 4) repossession of vehicles located within North
Carolina; 5) discussion of terms of the loan over the phone; 6) written solicitation
letters; 7) offers of referral bonuses to North Carolina residents for referring new
North Carolina customers; and 8) receipt of loan payments made from North
Carolina.
¶ 26 Regarding Defendant’s online advertisements, this court in Havey v. Valentine
outlined the following tests to determine whether an internet website warrants the
exercise of personal jurisdiction:
[A] State may, consistent with due process, exercise
judicial power over a person outside of the State when that
person (1) directs electronic activity into the State, (2) with
the manifested intent of engaging in business or other
interactions within the State, and (3) that activity creates,
in a person within the State, a potential cause of action
cognizable in the State’s courts.
Havey v. Valentine,172 N.C. App. 812, 816-17, 616 S.E.2d 642, 647 (2005). Notably,
at least one of Defendant’s internet advertisements directly targeted North Carolina:
Are you a North Carolina resident? We’ve got you covered!
You are just a short drive away from getting the cash you
need! Do you live in the Charlotte area? What about
Fayetteville or Wilmington? How about Hendersonville,
Lumberton, Monroe, or Rockingham? There is a [sic]
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[AutoMoney] Title Loans right across the border with a
professional and courteous staff ready to help you get the
cash you need. Is it worth the drive? Our thousands of
North Carolina customers would certainly say it is.
This advertisement is clearly a “manifested intent” to engage in business within
North Carolina by recruiting our residents and providing them with information on
how to acquire loans. Defendant’s high interest car title loans would be void as a
matter of public policy if offered by a company within North Carolina. Because
Defendant attempts to circumvent North Carolina’s predatory lending laws by
operating from South Carolina while directly marketing to North Carolina residents,
Defendant’s internet advertisements satisfy the test for personal jurisdiction over
internet communications as stated in Havey.
¶ 27 Moreover, Defendant ran an advertisement in a North Carolina publication for
six consecutive years. Although running an advertisement in a national publication
is not sufficient, standing alone, to establish personal jurisdiction, this Court has yet
to address whether advertisements in a local publication can give rise to personal
jurisdiction. See Stallings v. Hahn, 99 N.C. App. 213, 216, 392 S.E.2d 632, 634 (1990);
Marion v. Long, 72 N.C. App. 585, 587, 325 S.E.2d 300, 303 (1985). Certainly, placing
an advertisement in a publication which primarily circulates in a single state is
sufficient for a defendant to reasonably anticipate being haled into that state’s court.
See World-Wide Volkswagen Corp., 444 U.S. at 297, 100 S. Ct. at 567, 62 L. Ed. 2d at
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501.
¶ 28 Because Defendant had direct contact with North Carolina through its
business operations, internet advertisements, and local publication advertisements,
Defendant purposefully “avail[ed] [it]self of the privilege of conducting activities
within” North Carolina. Tom Togs, Inc., 318 N.C. at 365, 348 S.E.2d at 786 (citation
omitted). In other words, the sum and quality of Defendant’s contacts with this State,
paired with Defendant’s obvious intent to recruit North Carolina clients, is sufficient
to establish personal jurisdiction. Accordingly, we hold the trial court did not err by
denying Defendant’s Rule 12(b)(2) motion to dismiss.
B. Rule 12(b)(6) Motion
¶ 29 Defendant next asserts the trial court erred by denying its motion to dismiss
under Rule 12(b)(6). After a careful review of the record and applicable law, we
conclude the trial court committed no error.
¶ 30 We review a trial court’s ruling on a motion to dismiss under Rule 12(b)(6) de
novo. Leary v. N.C. Forest Prods., Inc., 157 N.C. App. 396, 400, 580 S.E.2d 1, 4 (2003),
aff’d per curiam, 357 N.C. 567, 597 S.E.2d 673 (2003); see Grich v. Mantelco, LLC,
228 N.C. App. 587, 589, 746 S.E.2d 316, 318 (2013). A Rule 12(b)(6) motion to dismiss
“tests the legal sufficiency of the complaint.” Stanback v. Stanback, 297 N.C. 181,
185, 254 S.E.2d 611, 615 (1979) (citing Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161(1970)). When “ruling on . . . [a Rule 12(b)(6)] motion the allegations of the complaint
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must be viewed as admitted, and on that basis the court must determine as a matter
of law whether the allegations state a claim for which relief may be granted.”
Stanback, 297 N.C. at 185, 254 S.E.2d at 615 (citing Newton v. Standard Fire Ins.
Co., 291 N.C. 105, 229 S.E.2d 297 (1976)); see Sutton, 277 N.C. at 103, 176 S.E.2d at
166 (“[A] complaint should not be dismissed for insufficiency unless it appears to a
certainty that plaintiff is entitled to no relief under any state of facts which could be
proved in support of the claim.”); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99,
102, 2 L. Ed. 2d 80, 84 (1957).
¶ 31 Here, Defendant argues the trial court should have granted its Rule 12(b)(6)
motion because of the South Carolina choice of law provisions within its loan
agreement and acknowledgement and waiver form mandating the application of
South Carolina law and, thus, precluding Plaintiff’s claims arising from North
Carolina law. As a general rule, a “court interprets a contract according to the intent
of the parties to the contract.” Cable Tel Servs. v. Overland Contr., 154 N.C. App.
639, 642, 574 S.E.2d 31, 33 (2002) (citing Bueltel v. Lumber Mut. Ins. Co., 134 N.C.
App. 626, 631, 518 S.E.2d 205, 209 (1999)); Duke Power Co. v. Blue Ridge Electric
Membership Corp., 253 N.C. 596, 602, 117 S.E.2d 812, 816 (1961). However, the
intent of the parties must not “require the performance of an act prohibited by law.”
Duke Power Co., 253 N.C. at 602, 117 S.E.2d at 816. When “parties to a contract have
agreed that a given jurisdiction’s substantive law shall govern the interpretation of
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the contract, such a contractual provision will be given effect.” Tanglewood Land Co.
v. Byrd, 299 N.C. 260, 262, 261 S.E.2d 655, 656 (1980); see Bueltel, 134 N.C. App. at
631, 518 S.E.2d at 209 (“[I]t is apparent that when a choice of law provision is
included in a contract, the parties intend to make an exception to the presumptive
rule that the contract is governed by the law of the place where it was made.”). A
choice of law provision is binding “on the interpreting court as long as they had a
reasonable basis for their choice and the law of the chosen State does not violate a
fundamental public policy of the state or otherwise applicable law.” Torres v.
McClain, 140 N.C. App. 238, 241, 535 S.E.2d 623, 625 (2000) (quoting Behr v. Behr,
46 N.C. App. 694, 696, 266 S.E.2d 393, 395 (1980)); see also Glover v. Rowan Mut.
Fire Ins. Co., 228 N.C. 195, 198, 45 S.E.2d 45, 47 (1947) (“[I]t is a general rule of law
that agreements against public policy are illegal and void.”). A choice of law
provision, or any such agreement, is against public policy when it “tend[s] to the
violation of a statute.” Glover, 228 N.C. at 198, 45 S.E.2d at 47 (citation omitted).
¶ 32 Plaintiff asserts that regardless of the choice of law provisions, Defendant is
subject to North Carolina law under N.C. Gen. Stat. § 53-190. As such, we must
determine whether N.C. Gen. Stat. § 53-190 constitutes a “fundamental public policy”
or “otherwise applicable law” as to invalidate Defendant’s choice of law provision and
acknowledgement and waiver form. See Torres, 140 N.C. App. at 241, 535 S.E.2d at
625.
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1. N.C. Gen. Stat. § 53-190 is a Fundamental Public Policy
¶ 33 N.C. Gen. Stat. § 53-190 states:
(a) No loan contract made outside this State in the amount
of or the value of fifteen thousand dollars ($15,000) or less,
for which greater consideration or charges than are
authorized by . . . [N.C. Gen. Stat. §§] 53-173 and . . . 53-
176 of this Article have been charged, contracted for, or
received, shall be enforced in this State. Provided, the
foregoing shall not apply to loan contracts in which all
contractual activities, including solicitation, discussion,
negotiation, offer, acceptance, signing of documents, and
delivery and receipt of funds, occur entirely outside North
Carolina.
(b) If any lender or agent of a lender who makes loan
contracts outside this State in the amount or of the value
of fifteen thousand dollars ($15,000) or less, comes into this
State to solicit or otherwise conduct activities in regard to
such loan contracts, then such lender shall be subject to the
requirements of this Article.
(c) No lender licensed to do business under this Article may
collect, or cause to be collected, any loan made by a lender
in another state to a borrower, who was a legal resident of
North Carolina at the time the loan was made. The
purchase of a loan account shall not alter this prohibition.
N.C. Gen. Stat. § 53-190 (2021). In other words, N.C. Gen. Stat. § 53-190 aims to
protect North Carolina residents from predatory lending by nonresident, predatory
loan corporations that infiltrate North Carolina through the contractual activities
listed above.
¶ 34 In making our determination whether § 53-190 constitutes a fundamental
public policy of this State, we are guided by our case law concerning predatory
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lending. In State ex rel. Cooper v. NCCS Loans, Inc., defendant offered immediate
cash advances under the guise of an internet store wherein the customer was required
to sign a year-long contract for “internet access.” 174 N.C. App. 630, 635-36, 624
S.E.2d 371, 375 (2005). The customers were charged “100 times more” for internet
access compared to legitimate internet providers and a high interest rate on the cash
advanced. Id. at 637-38, 624 S.E.2d at 376-77. The trial court granted summary
judgment against defendants for usury laws, violation of the North Carolina
Consumer Finance act, and unfair and deceptive trade practices. Id. at 633, 624
S.E.2d at 373-74. On appeal, defendant challenged, among other things, the trial
court’s entry of summary judgment on plaintiff’s claim of unfair and deceptive trade
practices. Id., 174 N.C. App. at 640, 624 S.E.2d at 378. We agreed with the trial
court, stating “it is a ‘paramount public policy of North Carolina to protect North
Carolina resident borrowers through the application of North Carolina interest laws.’
” Id. at 641, 624 S.E.2d at 378; see N.C. Gen. Stat. § 24-2.1(g) (2021); Odell v. Legal
Bucks, LLC, 192 N.C. App. 298, 319, 665 S.E.2d 767, 780 (2008).
¶ 35 Moreover, a review of North Carolina’s General Assembly’s legislative action
regarding predatory lending within our State further guides our decision. On
December 20, 2006, our Supreme Court in Skinner v. Preferred Credit, addressed
whether North Carolina had personal jurisdiction over the 1997-1 Trust, a
nonresident defendant who held high interest loans. 361 N.C. 114, 119, 638 S.E.2d
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203, 208 (2006). In a 4 to 3 decision, Justice Newby writing for the majority concluded
“North Carolina courts lack personal jurisdiction over a nonresident trust that has
no connections to this state other than holding mortgage loans secured by deeds of
trust on North Carolina property.” Id. at 127, 638 S.E.2d at 213. Justice Timmons-
Goodson strongly dissented, writing the “Court’s decision today aids in the
exploitation of our state’s most vulnerable citizens[,]” and “the majority’s decision
effectively undermines the right of unwitting victims of predatory lending practices
. . . .” Id. (Timmons-Goodson, J., dissenting).
¶ 36 Less than four months after the decision in Skinner, our General Assembly
enacted House Bill 1374, thus overturning the Skinner case. The bill was entitled
“An Act to Overturn the Shepard Case and Amend the Limitation Regarding Actions
to Recover for Usury; To Overturn The Skinner Case And Amend The Long-Arm
Statute To Allow North Carolina Courts to Exercise Personal Jurisdiction Over
Certain Nonresident Defendants; To Require That a Notice of Foreclosure Contain
Certain Information; And to Provide for Mortgage Debt Collection and Servicing.”
2007 N.C. Session Laws, House Bill 1374 (emphasis added). In addition to House Bill
1374, our General Assembly proceeded to pass four other bills addressing consumer
mortgage lending in the summer of 2007. Susan E. Hauser, Predatory Lending,
Passive Judicial Activism, and the Duty to Decide, 86 N.C.L. Rev. 1501, 1555 (2008).
¶ 37 Based upon our General Assembly’s legislation prohibiting predatory lending,
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its swift response to Skinner, and our case law governing predatory lending practices
within the State of North Carolina, the issue of predatory lending is clearly a question
of fundamental public policy for this State. Thus, since N.C. Gen. Stat. § 53-190protects North Carolina citizens from predatory lending and our conclusion it
constitutes a fundamental public policy of this State, we next determine whether
Defendant violated this statute.
¶ 38 In pertinent part, N.C. Gen. Stat. § 53-190 prohibits predatory loans made
elsewhere unless “all contractual activities, including solicitation, discussion,
negotiation, offer, acceptance, signing of documents, and delivery and receipt of
funds, occur entirely outside North Carolina.” N.C. Gen. Stat. § 53-190(a).
“Negotiation” is defined as “deliberation, discussion, or conference upon the terms of
a proposed agreement, or as the act of settling or arranging the terms of a bargain or
sale.” Cooper v. Henderson, 55 N.C. App. 234, 235, 284 S.E.2d 756, 757 (1981).
“Discussion” is defined as “[t]he act of exchanging views on something; a debate.”
Discussion, Black’s Law Dictionary (10th ed. 2014).
¶ 39 Here, Defendant negotiated and discussed the terms of the loan agreement
with North Carolina residents while they were in North Carolina. Plaintiff recounted
the following in her deposition:
In or about 2017, I got a car title loan from AutoMoney in
Bennettsville, South Carolina. AutoMoney had mailed me
a flier offering me a loan at my home in North Carolina. . . .
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After I received the flier, I called AutoMoney from my home
in North Carolina. . . . The AutoMoney employee asked me
if I had a car with clear title . . . [and the] year, make,
model, mileage and condition of my car. . . . The
AutoMoney employee told me that based on my car
AutoMoney could make me a loan in the amount of at least
$1000.00. They asked me if I wanted to get a loan. I told
them I did want the loan and they told me to drive to the
AutoMoney store in South Carolina. They told me to bring
the car and the title to my car, a paycheck stub and proof
of residency.
Per Plaintiff’s affidavit, Defendant discussed details of the loan amount and the
security interest for the loan with her over the phone. Furthermore, Derbyshire, in
her deposition, stated Defendant would provide information about its business to
potential borrowers who contacted Defendant. Because Defendant’s business was
providing high interest loans, these details would naturally be included in
“information about its business.”
¶ 40 We pause to note Defendant contends the trial court’s February 1, 2020 order
lacked findings of fact or analysis to support its ultimate dismissal of Defendant’s
Rule 12(b)(6) motion.4 We are unpersuaded by this argument. Within the February
1, 2020 order, the trial court made specific findings of fact regarding Plaintiff’s
experience with Defendant as stated above. The trial court made further findings of
4 A trial court is not required to make findings of fact or conclusions of law unless
otherwise specifically requested by a party or as required under N.C. Gen. Stat. § 1A-1, R.
41(b). N.C. Gen. Stat. § 1A-1, R. 52. Defendant specifically requested such findings of fact
at the end of the January 11, 2020 hearing.
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fact that Defendant called other North Carolina residents to discuss a loan, the
details of the loan, offer a loan, and receive acceptances of a loan. As such, we
conclude the trial court’s order contained sufficient findings of fact.
¶ 41 By discussing its business and the terms of contracts by phone with North
Carolina residents, Defendant discussed and negotiated loans within North Carolina
as defined by N.C. Gen. Stat. § 53-190. Therefore, we conclude Defendant violated
N.C. Gen. Stat. § 53-190, and in turn, violated a fundamental public policy of North
Carolina. As such, we hold the choice of law provisions within Defendant’s loan
agreement and its acknowledgement and waiver form is void as a matter of public
policy and the trial court properly denied Defendant’s Rule 12(b)(6) motion.
C. Venue
¶ 42 Defendant next contends the trial court erred by denying its motion to dismiss
under Rule 12(b)(3), and thus failing to enforce its South Carolina forum selection
clause. We disagree.
¶ 43 In the case sub judice, the trial court concluded, inter alia, “the forum selection
clause is against public policy and is void and unenforceable.” This Court reviews a
trial court’s decision concerning forum selection clauses under the abuse of discretion
standard of review. Mark Group Int’l, Inc. v. Still, 151 N.C. App. 565, 566, 566 S.E.2d
160, 161 (2002); see Appliance Sales & Serv. v. Command Elecs. Corp., 115 N.C. App.
14, 21, 443 S.E.2d 784, 789 (1994). But cf. US Chem. Storage, LLC v. Berto Constr.,
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Inc., 253 N.C. App. 378, 382, 800 S.E.2d 716, 720 (2017) (“A trial court’s
interpretation of a forum selection clause is an issue of law that is reviewed de novo.”).
“The test for abuse of discretion requires the reviewing court to determine whether a
decision ‘is manifestly unsupported by reason,’ or ‘so arbitrary that it could not have
been the result of a reasoned decision.’ ” State v. Locklear, 331 N.C. 239, 248, 415
S.E.2d 726, 732 (1992) (quoting Little v. Penn Ventilator Co., 317 N.C. 206, 218, 345
S.E.2d 204, 212 (1986)).
¶ 44 Defendant’s loan agreement contained a forum selection clause, designating
South Carolina as the venue in which Plaintiff may bring suit. A forum selection
clause “allow[s] a court to refuse to exercise that jurisdiction in recognition of the
parties’ choice of a different forum.” Perkins v. CCH Computax, Inc., 333 N.C. 140,
143, 423 S.E.2d 780, 782 (1992). Under N.C. Gen. Stat. § 22B-3,
any provision in a contract entered into in North Carolina
that requires the prosecution of any action or the
arbitration of any dispute that arises from the contract to
be instituted or heard in another state is against public
policy and is void and unenforceable. This prohibition shall
not apply to non-consumer loan transactions or to any
action or arbitration of a dispute that is commenced in
another state pursuant to a forum selection provision with
the consent of all parties to the contract at the time that
the dispute arises.
N.C. Gen. Stat. § 22B-3 (2021). Moreover, “a forum selection clause should be invalid
if enforcement would ‘contravene a strong public policy of the forum in which suit is
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brought.’ ” Perkins at 144, 423 S.E.2d at 783 (quoting M/S Bremen v. Zapata Off-
Shore Co., 407 U.S. 1, 15, 92 S. Ct. 1907, 1916, 32 L. Ed. 2d 513, 523 (1972)).
¶ 45 The threshold question becomes whether Defendant’s forum selection clause
contravenes a strong public policy, thus rendering it invalid. Here, the trial court
found “[t]he car title loan giving rise to this civil action was by law made and entered
into pursuant to N.C. Gen. Stat. § 24-2.1[,]” and, therefore, under N.C. Gen. Stat. §
22B-3 is void as a matter of public policy.
¶ 46 As discussed above, protecting North Carolina residents from predatory
lending is a strong public policy of this State. The enforcement of Defendant’s forum
selection clause would contravene our State’s interest in offering such protection by
allowing corporations to circumvent our laws through merely establishing themselves
in a different state. Moreover, because we are affirming the trial court’s denial of
Defendant’s motion to dismiss under Rule 12(b)(2) and Rule 12(b)(6), to uphold its
forum selection clause would functionally undermine our ruling. Therefore, we
conclude Defendant’s loan agreement forum selection clause is void as a matter of
public policy.
¶ 47 Even if the forum selection clause is valid notwithstanding the reasons stated
supra, it is nonetheless invalid under N.C. Gen. Stat. §§ 24-2.1 and 22B-3. Turning
first to N.C. Gen. Stat. § 24-2.1, it provides,
(a) For purposes of this Chapter, any extension of credit
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shall be deemed to have been made in this State, and
therefore subject to the provisions of this Chapter if the
lender offers or agrees in this State to lend to a borrower
who is a resident of this State, or if such borrower accepts
or makes the offer in this State to borrow, regardless of the
situs of the contract as specified therein.
(b) Any solicitation or communication to lend, oral or
written, originating outside of this State, but forwarded to
and received in this State by a borrower who is a resident
of this State, shall be deemed to be an offer or agreement
to lend in this State.
...
(g) It is the paramount public policy of North Carolina to
protect North Carolina resident borrowers through the
application of North Carolina interest laws. Any provision
of this section which acts to interfere in the attainment of
that public policy shall be of no effect.
N.C. Gen. Stat. § 24-2.1(a)-(b) (2021) (emphasis added); see NCCS Loans, Inc., 174
N.C. App. at 641, 624 S.E.2d at 378. “Deem,” as used above, is defined as “[t]o treat
[something] as if . . . it were really something else[] . . . .” Deem, Black’s Law
Dictionary, (10th Ed. 2014).
¶ 48 Defendant’s actions are subject to the provisions of N.C. Gen. Stat. § 24-2.1.
First, Plaintiff is a citizen and resident of Scotland County, North Carolina. Second,
Plaintiff received an advertisement letter from Defendant to her North Carolina
address. This advertisement letter, in effect, solicited her to engage in a loan with
Defendant. As a result of Defendant’s solicitation, Plaintiff called Defendant and
discussed the terms of a loan. While on the phone, Defendant asked Plaintiff if she
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wanted to acquire a loan, to which she answered in the affirmative. Although
Plaintiff entered into the loan with Defendant in South Carolina, Defendant “offer[ed]
or agree[d] in this State to lend to . . . Plaintiff who is a resident of this State” and
“solicitit[ed] or communicat[ed] to lend” while Plaintiff was in North Carolina. As a
result of these actions with Plaintiff, Defendant is subject to N.C. Gen. Stat. § 24-
2.1(a)-(b).
¶ 49 Accordingly, we review Defendant’s loan agreement as though it was made in
North Carolina. Because N.C. Gen. Stat. § 22B-3 provides that forum selection
clauses in contracts such as the one prepared by Defendant are “against public policy
and . . . void and unenforceable[,]” Defendant’s loan agreement forum selection clause
is void as a matter of public policy under N.C. Gen. Stat. §§ 24-2.1 and 22B-3.
Szymczyk v. Signs Now Corp., 168 N.C. App. 182, 185, 606 S.E.2d 728, 731 (2005)
(citation omitted).
IV. Conclusion
¶ 50 Based on the reasons stated above, Defendant is subject to personal
jurisdiction in North Carolina, and as such, the trial court did not err by denying
Defendant’s motion to dismiss under Rule 12(b)(2). Furthermore, Defendant’s actions
violated N.C. Gen. Stat. § 53-190. Therefore, the trial court did not err by denying
Defendant’s motion to dismiss under Rule 12(b)(6). Additionally, the trial court did
not err by denying Defendant’s motion to dismiss under Rule 12(b)(3). Thus, the
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orders of the trial court are affirmed. It is so ordered.
AFFIRMED.
Judges HAMPSON and GORE concur.