United Virginia Bank/Citizens & Marine v. Woronoff

HEDRICK, Judge. The sole question raised by this appeal is whether summary judgment was properly entered for plaintiff. A summary judgment must be granted, upon motion, “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.” G.S. § 1A-1, Rule 56(c). When the movant, as here, is the party with the burden of proof, summary judgment may be granted in his favor on the basis of his own affidavits (1) when there are only latent doubts as to the affiant’s credibility; (2) where the opposing party has failed to introduce any materials in his favor, failed to point to specific areas of impeachment and contradiciton, and failed to use G.S. § 1A-1, Rule 56(f); and (3) when summary judgment is otherwise appropriate. Kidd v. Early, 289 N.C. 343, 222 S.E.2d 392 (1976); Brooks v. Mount Airy [164] Rainbow Farms Center, Inc., — N.C. App., — , S.E.2d — (filed 16 September 1980). We are of the view that summary judgment was properly entered in this case. First, the record does not indicate that any doubts, other than latent doubts, have been raised as to the credibility of Jenny Brabrand, plaintiff’s affiant. Defendants conducted an extensive deposition of Brabrand, in which she provided consistent testimony as to the handling of loan payment records at plaintiff bank. Second, defendants have failed to introduce any materials in their favor. Defendants rely solely on their pleadings to oppose plaintiff’s motion for summary judgment, and did not file any affidavits or other materials as required by G.S. § 1A-1, Rule 56(e). Third, defendants have not pointed to any specific areas of impeachment and contradiction. Although defendants contend that inconsistencies exist between statements made by Brabrand in her affidavit and her testimony at the deposition, we have found no such contradiction. Brabrand did not state in her affidavit, as defendants would argue, that she had personal knowledge as to the circumstances surrounding the signing of the Southern note and the transfer of consideration; she merely stated, obviously based upon her duties in handling loan documentation for plaintiff and her careful examination of plaintiff’s records, that the loan “was actually made.” Indeed, Brabrand made a very similar statement to that effect in her deposition. Finally, we are convinced that no genuine issue of material fact has been raised by the materials in the record of this case. Defendants have admitted the genuineness of the Southern note and the “Unconditional Guaranty” document under which defendants guaranteed payment of the loan balances due plaintiff from Southern. Defendants have admitted that their signatures appear at the end of the guaranty document and thus their liability for the unpaid indebtedness of Southern has been established. No evidence has been offered that in any way indicates that defendants’ liability on the document has been terminated. Defendants have also admitted that they have never made any payments on the note and that no payments were made on the note to the best of their knowledge. We must therefore conclude that the requirements of Kidd v. Early, supra, have been met and the decision of the trial court is affirmed. Affirmed. [165] Judges Clark and Whichard concur.