Lowman v. Huffman

HEDRICK, Judge. The question presented on this appeal is whether the Court erred in allowing the defendants’ motion for summary judgment. The standard for summary judgment is fixed by Rule 56(c). “The judgment sought shall be rendered forthwith 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.” Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E. 2d 823 (1971). “The rule does not contemplate that the court will decide an issue of fact, but rather will determine whether a real issue of fact exists.” Gordon, The New Summary Judgment Rule in North Carolina, 5 Wake Forest Intra. L. Rev. 87 (1969). “The determination of what constitutes a ‘genuine issue as to any material fact’ is often difficult. It has been said that an issue is material if the facts alleged are such as to constitute a legal defense or are of such nature as to affect the result of the action, or if the resolution of the issue is so essential that the party against whom it is resolved may not prevail.” 3 Barron and Holtzoff, Federal Practice and Procedure, § 1234 (Wright Ed. 1958), at page 131. In their complaint the plaintiffs allege they made sufficient payments on the $4,500 loan from the defendants “to keep the same in good standing.” Although the defendants’ in their answer denied this allegation and supported their motion for summary judgment with evidence tending to show that the plaintiffs were delinquent in their payments 43 out of 60 months and that when the foreclosure proceeding was commenced, they were three payments in arrears, the evidence of the plaintiff by the affidavit of Walter W. Lowman tended to show that the plaintiffs had made payments from 6 May 1965 until 13 July 1970, which were more than sufficient to cover the indebtedness secured by the deed of trust. Obviously whether the plaintiffs had paid the indebtedness secured by the deed of trust is a material issue of fact in [704] this action attacking the defendants’ right to sell the property-given as security for the indebtedness. The trial judge actually determined this material fact when he found: “At the time of the foreclosure plaintiffs were in default two monthly payments as called for by the terms of the deed of trust. ...” and concluded: “There is no substantial issue of fact as to whether or not the plaintiffs were in default in their payments under the deed of trust at the time of the foreclosure. . . .” The resolution of this issue by the trial judge against the plaintiffs made it impossible for them to prevail and clearly affected the result of their action. The very fact that the trial judge apparently felt compelled to make findings of fact in ruling on a motion for summary judgment indicates that the record shows there are genuine issues of material fact to be resolved before the rights of the parties can be finally adjudicated. We hold the pleadings, affidavits, and exhibits on file show there are genuine issues of material fact which can only be resolved by a trial of the action. This summary judgment in favor of the defendants is reversed. Reversed. Judges Brock and Morris concur.