Valu-Lodge Of Greenville, Inc., et al v Branch Banking And Trust

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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. NO. COA11-1241 NORTH CAROLINA COURT OF APPEALS Filed: 21 August 2012 VALU-LODGE OF GREENVILLE, INC., a Georgia corporation, D I OF CANDLER, INC. (f/k/a Days Inn of Candler, Inc.), a North Carolina corporation, DEBORAH LYNN HARRELL, and SCOTT HARRELL, Plaintiffs, v. Buncombe County No. 10 CV 05701 BRANCH BANKING AND TRUST COMPANY (a/k/a BB&T), a North Carolina corporation, and RAINTREE REALTY AND CONSTRUCTION, INC., a North Carolina corporation, Defendants. Appeal by plaintiffs from order entered 13 June 2011 by Judge Mark E. Powell in Buncombe County Superior Court. Heard in the Court of Appeals 7 March 2012. Law Offices of George E. Butler II, Butler II, for Plaintiffs-Appellants. LLC, by George E. Van Winkle, Buck, Wall, Starnes and Davis, P.A., by Albert L. Sneed, Jr., for Defendants-Appellees. THIGPEN, Judge. -2Valu-Lodge Candler, Inc. of Greenville, ( Days Inn ), Inc. ( Valu-Lodge ), Deborah Lynn Harrell, D I and of Scott Harrell ( the Harrells ) (together, Plaintiffs ) appeal from an order granting summary judgment in favor of Branch Banking and Trust Company ( BB&T ), and Raintree Realty & Construction, Inc. (together, Defendants ). For the reasons stated herein, we affirm. In September 2004, Days Inn approached BB&T about purchasing a motel and restaurant with funding from a BB&T loan, supported federally ( SBA ).1 by Through the Small negotiations, Business both Administration parties agreed to Plaintiffs receiving a ninty-day interim loan of $1,317,500.00 from BB&T, contingent upon Plaintiffs participation in the SBA 504 loan program, which would provide funding in the amount of $557,000.00 planned for pursuant the to a interim 20-year loan from debenture. BB&T to be The parties dispersed to Plaintiffs, and once the funding from the SBA debenture sale was received applied 1 by to BB&T, the $542,500.00 loan to of the $557,000.00 reduce the principal would be amount to Valu-Lodge became the successor-in-interest to Days Inn by virtue of a General Warranty Deed dated 10 April 2006. The Harrells gave personal guarantees to BB&T, guaranteeing payment of the BB&T loan to Days Inn and to all other indebtedness of Days Inn whether now existing or hereafter arising. -3$775,000.00. The loan from BB&T was finalized in October 2004, and funding from the SBA debenture was received by BB&T in May 2005. The $557,000.00 from the SBA debenture reduced the principal on the loan as agreed.2 The parties arranged that for the first 90 days of the loan, Plaintiffs would repay $10,997.99 per month to BB&T to reduce the outstanding principal and interest on the BB&T loan. The crux of the issue in this case is whether upon BB&T s receipt of the funding from the SBA debenture, and the resultant reduction of the outstanding principal loan amount BB&T should have automatically reduction of re-amortized Plaintiffs the monthly loan, payments resulting to in a $6,469.35. According to Plaintiffs, during the credit application process they believed the reduction in monthly payments automatically occur when the SBA funding was received. would However, the actual loan agreement stated that the loan may be converted to a permanent loan upon the completion of the debenture sale by SBA. 2 Defendants contend that under the language of the loan The attorney for BB&T, Mr. Albert Sneed, explained the arrangement to the trial court in the following way: There was an SBA loan, and the way those work is they make a secondmortgage loan, the bank makes a first mortgage loan, the SBA comes along later and funds[,] and the money goes to the first mortgage. So you have a first mortgage to the bank and a second mortgage to the SBA. -4agreement, Plaintiffs were required to request the reduction in monthly payments in order to receive them. Plaintiffs did not request a reduction in the amount of the monthly payment, and the amount was not automatically reduced by BB&T. Plaintiffs $10,997.99 for debenture was continued 51 months received by to pay after the the BB&T. monthly funding These payment from payments, the of SBA Plaintiffs contend, amounted to an overpayment of $230,960.64. In the overpayment that the of 2009, Plaintiffs BB&T s and brought it to monthly payment be reduced refunded. reduce fall discovered attention, and the the requesting overpayment be BB&T declined to refund the overpayment but agreed to the monthly payments. The parties agreed to a Note Modification Agreement on 6 October 2009 lowering Plaintiffs monthly payments to $6,469.35. Plaintiffs foreclosed on defaulted Plaintiffs on the BB&T property. loan, and Plaintiffs Defendants filed a complaint, seeking declaratory relief, and alleging breach of contract and unfair and deceptive trade practices concerning the original note. Plaintiffs also alleged mutual mistake, actionable unilateral mistake, and duress warranting rescission of the amended note. Defendants filed a motion for summary -5judgment on 28 April 2011, and the trial court entered a summary judgment order on 8 June 2011 granting Defendants motion. Plaintiffs filed a notice of appeal on 12 July 2011. I. Standard of Review We review a trial court s order granting or denying summary judgment de novo. Builders Mut. Ins. Co. v. North Main Constr., Ltd., 361 N.C. 85, 88, 637 S.E.2d 528, 530 (2006). Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. N.C. Gen. Stat. § 1A-1, Rule 56(c) (2011). All facts asserted by the adverse party are taken as true, and their inferences must be viewed in the light most favorable to that party. 835 (2000) Dobson v. Harris, 352 N.C. 77, 83, 530 S.E.2d 829, (citations omitted). The showing required for summary judgment may be accomplished by proving an essential element of the opposing party's claim does not exist, cannot be proven at defense[.] trial, or would be Id. (citation omitted). II. barred by an affirmative -6Plaintiffs first argument on appeal is that the trial court erred in granting summary judgment for Defendants on due process and other procedural grounds. We hold that the arguments contained in this section of Plaintiffs brief are meritless. Plaintiffs first contend the trial court erred by entering a summary judgment order purported[ly] based on Defendants counterclaims and affidavits, rather than on the argument presented by Defendants in their motion for summary judgment. This argument is misplaced for several reasons. First, our review of the summary judgment order reveals that the trial court did not specify any legal or uncontested factual basis for the order allowing Defendants motion; nor was it required to. This is because the proper basis for a trial court s decision to allow a motion for summary judgment is always the following: the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law[.] Hindman v. Appalachian State University, __ N.C. App. __, __, 723 S.E.2d 579, 580 (2012) (citation and quotation omitted).3 3 A trial court may elaborate on the legal basis for its -7Moreover, although the movant has the burden of proof, our review is not limited to whether the movant met this burden based entirely upon the argument contained in the movant s motion for summary judgment; rather, we reiterate that the trial court may consider, pleadings, admissions and depositions, on file, this Court answers together with reviews to the de novo, the interrogatories, and affidavits[.] Id. Lastly, this Court has held that where the trial court s order does not state the legal basis for its ruling, if the granting of summary judgment can be sustained on any grounds, it should be affirmed on appeal. Wein II, LLC v. Porter, 198 N.C. App. 472, 478, 683 S.E.2d 707, 712 (2009) (citation and quotation omitted). Plaintiffs next make the following argument: [T]he instant Motion for Summary Judgment, given its completely open-ended needle in a haystack character, cannot be the basis for an award of summary judgment because it would be violative of the notice allowance of a summary judgment motion. See, e.g., Mullis v. Sechrest, 347 N.C. 548, 551, 495 S.E.2d 721, 722 (1998) (reviewing an order in which the trial court granted partial summary judgment on the basis of governmental immunity ). However, a statement of the legal basis for a trial court s summary judgment decision is not a requirement. See Hindman, __ N.C. App. at __, 723 S.E.2d at 580 (affirming an order allowing the defendants motion for summary judgment even though the order does not state the basis for any of [the trial court s] rulings ). -8requirements and due process norms that are implicit in Rule 56 and the referenced appellate rulings. This argument is also without merit. Although Plaintiffs cite as authority the referenced appellate rulings[,] it is not clear to which rulings Plaintiffs refer, and although Plaintiffs repeatedly reference due process and notice[,] Plaintiffs cite no authority argument. supporting any procedural due process Because Plaintiffs have failed to cite any authority or make any reasonable argument for the proposition that the nature of the trial court s order in this case infringes upon Plaintiffs procedural due process rights, this issue is deemed abandoned. See N.C. R. App. P. 28(b)(6) (2012) ( Issues . . . in support of which no reason or argument is stated, will be taken as abandoned ). Plaintiffs refer to the order as open-ended and as having a needle in a haystack character[.] misunderstanding of the nature of a This argument evinces a summary judgment order. [T]he enumeration of findings of fact . . . is technically unnecessary cases[.] 481 (1987) and generally inadvisable in summary judgment Ellis v. Williams, 319 N.C. 413, 415, 355 S.E.2d 479, (citation omitted). Summary judgment should be entered only where there is no genuine issue as to any material -9fact[;] [i]f findings of fact are necessary to resolve an issue as to a material fact, summary judgment is improper. Hyde Ins. Agency, Inc. v. Dixie Leasing Corp., 26 N.C. App. 138, 142, 215 S.E.2d 162, 164-65 (1975). Moreover, we repeat, a trial court is not required to state the legal or uncontested factual basis for its order. decision to allow a summary judgment motion in its See Hindman, __ N.C. App. at __, 723 S.E.2d at 580; see also Porter, 198 N.C. App. at 478, 683 S.E.2d at 712. III. In Plaintiffs second argument, they contend the trial court erred in granting summary judgment in favor of Defendants with respect to their counterclaim, which sought recovery of the money due to them from Plaintiffs default on the initial loan. We disagree. Plaintiffs with N.C. specifically Gen. Stat. § challenge 1A-1, Rule Defendants 56(e), with compliance regard to Defendants submission of the affidavit of Mr. Bryan Saxon, a Regional Credit Officer with BB&T. Rule 56(e) provides that [s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the competent to testify to the matters stated therein. affiant is N.C. Gen. -10Stat. § 1A-1, Rule 56(e). Plaintiffs argue that because Mr. Saxon was not personally involved with the actual transaction associated with the initial BB&T loan matter, and because his knowledge cannot stems serve as only the from reading affiant in the this related case. documents, Plaintiffs he also contend that the affidavit contains legal conclusions, which are not admissible judgment. S.E.2d when determining a motion for summary See Strickland v. Doe, 156 N.C. App. 292, 296, 577 124, conclusions, 129 as (2003) opposed (stating to facts that as an would affiant s be legal admissible in evidence, are not to be considered by the trial court on a motion for summary judgment ) (citation and quotation omitted). This Court is unaware of any case and Plaintiffs have not provided one that suggests that an affiant must, as Plaintiffs argue in their brief, be personally involved with the actual transaction in order to provide an affidavit satisfying the personal knowledge requirement of Rule 56. To the contrary, the necessary personal knowledge may be garnered from the review of documents. See In re Yopp, __ N.C. App. __, __, 720 S.E.2d 769, 772 (concluding (2011) that an affidavit complied with Rule 56(e) and was based upon personal knowledge when the affiant based his affirmations on the documents he had reviewed ). -11Moreover, although Plaintiffs state that Mr. Saxon s affidavit is rife with legal conclusions[,] the only example given by Plaintiffs in their brief of such a legal conclusion is Mr. Saxon s affirmation that Credit Approval Report[.] [t]he customer never sees the Whether the customer sees or does not see the credit approval report is not a legal conclusion. As Plaintiffs argument on this issue is based on generalities and unsupported by the actual contents of the affidavit, we believe Plaintiffs have failed to present any argument on this issue, and, 28(b)(6) thus, have ( Issues . . abandoned . in it. See support of N.C. which R. no App. P. reason or argument is stated, will be taken as abandoned ); see also James v. Charlotte-Mecklenburg County Bd. of Educ., __ N.C. App. __, __, __ S.E.2d __, __ (2012) (COA 11-1376) (stating that the petitioner s concerning brief the did opposing not contain party s any grounds specific for argument dismissal, but rather, presented the argument in conclusory fashion without reason or authority[,] and holding that the foregoing was insufficient to preserve this argument for appellate review, and . . . deeming the issue abandoned ). In addition submitted to the to Mr. trial Saxon s court affidavit, all relevant Defendants loan also documents -12detailing Defendants loan to Plaintiffs, Plaintiffs guaranty of the loan, and Plaintiffs subsequent default. These documents show that there is no genuine issue of material fact concerning Defendants counterclaim. Even assuming arguendo Plaintiffs argument as to Defendants affidavit has merit, Rule 56 does not require affidavits be filed at all. Because Defendants provided enough evidence to meet their burden for summary judgment without considering the affidavit, the issue of whether the determinative concerning provided affidavit of the Defendants enough complied question with of counterclaim evidence to meet Rule whether 56(e) is summary was proper. their burden not judgment Defendants for summary judgment without considering the affidavit, see N.C. R. Civ. P. 56(a), so summary judgment was properly granted to Defendants on their counterclaim. IV. Plaintiffs next argument is that the trial court erred in granting Defendants motion for summary judgment on Plaintiffs claims. Plaintiffs raised numerous claims at trial and upon appeal, namely breach of contract, mutual mistake, duress, and fraud. The central issue with respect to each claim is whether -13the loan should have been automatically re-amortized to the lower amount, or only at the request of Plaintiffs. A. In order to Breach of Contract prevail on a breach of contract claim, Plaintiffs must establish the (1) existence of a valid contract and (2) breach of the terms of [the] contract. 138 N.C. App. 19, omitted). Neither present this in whether 26, 530 party case. Defendants S.E.2d 838, 843 contests that a However, breached the that Poor v. Hill, (2000) valid parties (citation contract disagree contract. as is to Specifically, Plaintiffs contend that re-amortization of the loan should have been automatically completed, and that BB&T s failure to do so amounted documents to a breach contain amortization, a of contract. specific Plaintiffs contend Since reference that the none loan the loan automatic to of re- documents in question did not constitute a complete integration, that other documents should be included within the loan documents, and that these documents should not be construed as a loan agreement. Specifically, Plaintiffs wish to use parol testimony to show that the Credit Approval Report ( CAR ) and the Third-Party Lender agreement should be considered additional loan documents -14that prove automatic re-amortization was agreed upon by both parties during loan negotiations. It appears to be well settled in this jurisdiction that parol testimony of prior or contemporaneous negotiations or conversations inconsistent with a written contract entered into between the parties, or which tends to substitute a new or different contract for the one evidenced by the writing, is incompetent. Craig v. Kessing, 297 N.C. 32, 34, 253 S.E.2d 264, 265 (1979) (citation omitted). This rule applies where the writing totally integrates all the terms of a contract or supersedes all other agreements relating to the transaction. Id. at 35, 253 S.E.2d at 265. the writing is not a full However, where it is shown that integration of the terms of the contract the terms not included in the writing may then be shown by parol evidence. See Vestal v. Vestal, 49 N.C. App 263, 266, 271 S.E.2d 306, 308 (1980). Our Supreme Court has held, [p]romissory notes are not generally subject to the parol evidence rule to the same extent as other contracts . . . [so] it is rather common for a promissory note to be intended as only a partial integration of the agreement . . . and parol evidence as between the original parties may well be admissible so far as it is not inconsistent -15with the express terms of the note. North Carolina National Bank v. Gillespie, 291 N.C. 303, 308, 230 S.E.2d 375, 378-379 (1976). Viewing the evidence in a light most favorable to the nonmoving Plaintiffs in the present case, it appears that the agreement between Plaintiffs and Defendants was not a complete integration. merger clause, agreements. in The promissory note does not contain a complete but instead contains a reference to other The Loan Commitment Letter also contains language it explicitly Defendants, in stating their own the letter brief, concede is that an five outline. documents comprise the loan documents, which are the Commitment letter, the Promissory Note, the Deed of Trust, the Guaranties, and the Security agreement. Thus it appears that the loan agreement between the Plaintiffs and Defendants was a partial integration. i. Contemporaneously Executed Written Instruments Given that the loan agreement is a partial integration, Plaintiffs next argue that the CAR and the Third Party Lender agreement demonstrate that re-amortization of the loan should have been automatic. When using We disagree. parol evidence to determine the intent of contracting parties, [a]ll contemporaneously executed written -16instruments between the parties, relating to the subject matter of the contract, are to be construed together in determining what was undertaken. S.E.2d 477, 482 Yates v. Brown, 275 N.C. 634, 640, 170 (1969) (citations omitted). Both parties concede that the CAR was an internal document only seen by BB&T. The Yates court stated written instruments between the parties may be construed together. See id. The CAR was not between the parties; rather, it was a unilateral document executed solely for BB&T s internal use. Plaintiffs cite Yates as authority for the proposition that this Court should consider the CAR and the Third Party Lender Agreement, arguing that [u]ndisputed circumstances surrounding the execution of the written documents may be considered by the court in construing the written contract, insofar as these circumstances cast light upon the intent of the parties as to the meaning of the written words. 482. out Id. at 641, 170 S.E.2d at Further, Plaintiffs state that our Supreme Court has set eight exceptions to the parol evidence rule in North Carolina, one of which allows parol evidence for the purpose of showing mode of payment and discharge as contemplated by the parties, other than that specified in the instrument. -17Jefferson Standard Life Ins. Co. v. Morehead, 209 N.C. 174, 176, 183 S.E. 606, 607 (1936). Even assuming arguendo that the CAR should be used as parol evidence to demonstrate that automatic re-amortization was contemplated we still find Plaintiffs argument without merit because the CAR does not create a genuine issue of material fact as to automatic re-amortization. The phrase Plaintiffs point to in the CAR is a hand-written notation stating 90 days interest only converting $775,000. to permanent loan at reduced amount of There is also a second hand-written statement which states that interim loan for 90 days on $1,317,500 will convert to permanent after SBA debentures are sold and loan paid down to $775,000. Nothing in either sentence states that re- amortization or conversion will be automatic. As for the Third Party Lender Agreement, we are again not persuaded that this document creates a genuine issue of material fact as to automatic re-amortization. Plaintiffs contend that since the loan repayment period had to be 10 years, it required the loan to be automatically re-amortized; otherwise, the loan would be repaid faster than 10 years. This contention misapprehends what the Third Party Lender Agreement provides, which is that Plaintiffs would have at least 10 years to pay off -18the loan. At a rate of $10,997.99 per month, Plaintiffs were simply reducing the length of time it would take to repay the loan. Early repayment does not constitute a modification to the ten year term of this loan. ii. Affidavits Plaintiffs next argue several affidavits demonstrate that re-amortization of the loan should have been automatic. the BB&T Debenture Parol loan documents, Guarantee, evidence Promissory is Note. are except silent the on traditionally Plaintiffs SBA the All of Authorization issue of allowed to specifically for prepayment.4 supplement reference a the affidavits from banking and lending officials involved in the matter, argument Mr. Saxon and Mr. Robert Kendrick, to support their that Plaintiffs prepayment violated the parties agreement for a ten year term on the BB&T loan. The affidavit Plaintiffs. of Mr. Saxon is mischaracterized by As Plaintiffs quote Mr. Saxon, it would seem that automatic re-amortization should have occurred so as to avoid 4 The SBA Authorization for Debenture Guarantee contains a prepayment premium clause applying to the note in favor of the Asheville-Buncombe Development Corporation and assigned to the SBA, but not to the BB&T loan. The Asheville-Buncombe Development Corporation was the Certified Development Company ( CDC ) that served as the SBA s community-based partner for providing the 504 Loan. -19prepayment. the However, our reading of the affidavit shows that contemplation of re-amortization is discussed under the hypothetical that the borrower had already requested the reamortization, as Defendants contend was required to re-amortize the loan. Therefore, Mr. Saxon s affidavit does not support Plaintiffs argument. The affidavit of Mr. Kendrick, the President and CEO of Avista Business Development Corporation, which was the company that underwrote BB&T s SBA 504 Participation Loan, appears on its face to corroborate Plaintiffs contentions. However, upon closer inspection, Mr. Kendrick s affidavit does not create a genuine issue of material fact. BB&T loan documents and the The affidavit states that the SBA Authorization for Debenture Guarantee, squarely contemplate the following: [T]hat the $1,317,500[.00] interim convertible loan from BB&T to the Borrower would automatically convert to a permanent loan of $775,000[.00] upon the funding of the SBA-guaranteed 504 loan and be reamortized based on 15 years w/ 10-year balloon at payment based on 8.5% amort. rate so as to be compliant with Section B.3.b(5) of the SBA Authorization for Debenture Guarantee. (citation however, and are quotation in omitted). compliance Debenture Guarantee. with The the BB&T SBA loan documents, Authorization for The section of the SBA Authorization for -20Debenture Guarantee Mr. states the following: Kendrick references in his affidavit The Third Party Lender s note and loan documents must not . . . have a term less than, or require a balloon payment prior to, ten years. The Third Party Lender Agreement provides that [t]he Third Party Lender confirm[] that the note and all other documents executed in connection with the Third Party Lender Loan . . . have a term of at least, and do not require a balloon payment prior to, ten years[.] Our review of the record shows that all of the other BB&T loan documents are also in compliance with the SBA requirement in the SBA Authorization for Debenture Guarantee regarding the ten year term requirement. We reiterate that early repayment does not constitute a modification to the ten year term of this loan. As such, neither Mr. Kendrick s affidavit nor the other parol evidence genuine issue referenced of material by Plaintiffs fact as to on appeal Plaintiffs creates breach a of contract claim. B. Mutual Mistake Plaintiffs next argument is that the loan agreement was the result of mutual mistake. Reformation is a well- established equitable remedy used to reframe written instruments where, through mutual mistake or the unilateral mistake of one -21party induced by the fraud of the other, the written instrument fails to embody the parties actual, original agreement. Tree Ridge Neighborhood Ass n v. Grandfather Mt. Apple Heights Property Owners Corp., 206 N.C. App. 278, 283, 697 S.E.2d 468, 472 (2010) (citation omitted). [A] [claim] may be asserted when there is a mutual mistake of the parties as to the subject matter, the price, or the terms, going to show the want of a consensus. . . . Generally speaking, however, in order to affect the binding force of a contract, the mistake must be of an existing or past fact which is material; it must be as to a fact which enters into and forms the basis of the contract, or in other words it must be of the essence of the agreement . . . or, as is sometimes said, the efficient cause of the agreement, and must be such that it animates and controls the conduct of the parties. Opsahl v. Pinehurst Inc., 81 N.C. App. 56, 60, 344 S.E.2d 68, 71 (1986) (citation omitted). Plaintiffs argument for mutual mistake is that BB&T made a mistake by not automatically reamortizing the loan and Plaintiffs made continuing to pay the higher loan payments. the mistake of However, since this Court has already determined that BB&T was not required to reamortize the loan, there is no mutual mistake. Plaintiffs argument that the loan agreement should be reformed to reflect the original intent of the parties is also in error because none -22of the evidence presented by Plaintiffs supports the contention that both parties initially intended for the loan to automatically re-amortize.5 As for the unilateral mistake argument, Plaintiffs do not argue that it was the result of fraud, but rather point to Howell v. Waters, which states that [t]he mistake of one party is sufficient to avoid a contract when the other reason to know of the mistake or caused the mistake. party had 82 N.C. App. 481, 487-88, 347 S.E.2d 65, 69 (1986) (citation omitted). This argument fails because, as previously discussed, BB&T did not have reason to know of Plaintiffs mistake for fifty-one months. C. 5 Duress and Fraud We note that Plaintiffs provided the affidavit of Mr. Melton Harrel as evidence of mutual mistake. Mr. Harrel s affidavit contains a number of legal conclusions, including the following: To the extent that a provision for automatic conversion and re-amortization was required, then I can assure you based on my conversations with Mr. Mason, who is also not a lawyer, that the omission of that provision by the draftsman of the Promissory Note was a mutual mistake. See In re Yopp, __ N.C. App. at __, 720 S.E.2d at 772 ( statements in affidavits as to opinion, belief, or conclusions of law are of no effect ) (citation and quotation omitted). Moreover, although Mr. Harrel stated in his affidavit, I categorically deny having any conversations with Mr. Mason in which he ever indicated or suggested that the re-amortization of the loan in question would not be automatic[,] (emphasis in original) Mr. Harrel does not affirm in any part of his affidavit that he ever had a conversation with Mr. Mason in which the parties agreed that the re-amortization would be automatic. -23After discovering their prepayment on the loan, Plaintiffs asked BB&T for a revised payment schedule, and Plaintiffs ultimately signed an Amended Note to reflect the new agreement. In their final argument, Plaintiffs ask this Court to rescind the Amended Note on the basis of duress and fraud. We decline to do so. Duress exists when a person, by an unlawful or wrongful act of another is induced to make a contract or perform or forego some act under circumstances which deprive him of the exercise of free will. Reynolds v. Reynolds, 114 N.C. App. 393, 398-99, 442 S.E.2d 133, 136 (1994) (citation and quotation omitted). An act is wrongful if made with the corrupt intent to coerce a transaction grossly unfair to the victim and not related to the subject of such proceedings. S.E.2d at 136. Generally, actions Id. at 399, 442 taken by a voluntarily will not be said to be given under duress. person Id. Duress is not present here. Plaintiffs voluntarily entered into this agreement. Plaintiffs had other options when they entered into the Amended Note, and so they could have adopted other courses of action. by BB&T. In addition, there was no wrongful act BB&T simply abided by the contractual terms and agreed to reduce the loan payment when Plaintiffs so requested. -24Likewise, fraud elements of fraud are: does not exist here. The essential (1) False representation or concealment of a past or existing material fact, (2) reasonably calculated to deceive, (3) made with intent to deceive, (4) which does in fact deceive, (5) resulting in damage to the injured party. Hardin v. KCS Int l, Inc. 199 N.C. App. 687, 696, 682 S.E.2d 726, 733 (2009). tried to On this record, it does not appear that BB&T deceive or intended to deceive Plaintiffs on any matters with the Amended Note. Having addressed all of Plaintiffs arguments and determined that the trial court did not err by granting summary judgment, this Court declines to address the arguments presented by Defendants. For the reasons stated herein, the decision of the trial court is AFFIRMED. AFFIRMED. Judges CALABRIA and ERVIN concur. Report per Rule 30(e).

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