Link to original WordPerfect file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
NO. COA01-1543
NORTH CAROLINA COURT OF APPEALS
Filed: 1 October 2002
FIRST UNION NATIONAL BANK OF DELAWARE,
Plaintiff
v
.
BANKERS WHOLESALE MORTGAGE, LLC, and BWM MORTGAGE, LLC,
Defendants.
Appeal by defendants from judgment entered 19 September 2001
by Judge Richard D. Boner in Mecklenburg County Superior Court.
Heard in the Court of Appeals 11 September 2002.
James, McElroy & Diehl, P.A., by Edward T. Hinson, Jr. and
Richard S. Wright, for plaintiff-appellee.
Shumaker, Loop & Kendrick, LLP, by William H. Sturges, for
defendants-appellants.
TYSON, Judge.
Bankers Wholesale Mortgage, L.L.C. and BWM Mortgage, L.L.C.
(defendant or BWM) appeal from the trial court's denial of
their motion to dismiss for lack of personal jurisdiction. We
affirm the order of the trial court.
I. Facts
Defendants are limited liability companies organized under the
laws of the state of Wisconsin. Plaintiff is a corporation
organized under the laws of the state of Delaware with a principal
place of business in Charlotte, North Carolina. In January of
1996, BWM and plaintiff entered into a written Continuous Buy-Sell
Agreement (agreement) which stated plaintiff could purchase
loans secured by mortgages or deeds of trust from BWM. Pursuant tothis agreement, plaintiff purchased approximately forty-five loans
from BWM over a four-year period. All payments made from plaintiff
originated in and were mailed or wired from its Charlotte, North
Carolina offices.
On 30 May 2000, BWM applied for registration with the North
Carolina Commissioner of Banks to do business as a mortgage banker
in the state of North Carolina pursuant to N.C. Gen. Stat.
§ 53-233 (2001) . BWM posted a $25,000 surety bond as a
prerequisite to obtaining registration pursuant to 4 NCAC
3I .0301(b)(1) (June 2002). The application was approved by the
Commissioner on 16 June 2000. BWM's status allowed it to both
broker and fund mortgage loans within the State of North Carolina.
BWM never brokered or funded mortgage loans in North Carolina and
allowed their registration to expire in January of 2001; however,
the surety bond defendant posted remains in full force and effect.
In August of 2000, plaintiff discovered alleged
misrepresentations in the files of three loans purchased from BWM.
Defendant refused to repurchase these loans despite plaintiff's
demand. Plaintiff sued defendants in Mecklenburg County Superior
Court for breach of contract and negligent misrepresentation.
Defendants moved to dismiss based on lack of personal jurisdiction.
The trial court found in part:
5. Over the course of four years, from
execution of the Agreement in 1996 to 2000,
BWM sold FUNB-DE approximately forty-five
separate loans.
6. FUNB-DE is based in Charlotte, and all
payments to BWM for loans pursuant to theAgreement were mailed or wired from FUNB-DE's
Charlotte, North Carolina offices.
7. BWM applied for registration with the North
Carolina Commissioner of Banks on May 30, 2000
to do business as a mortgage banker in this
state. The Commissioner approved the
application on June 16, 2000. BWM's
registered status allowed it to both broker
and fund mortgage loans within the state of
North Carolina. However, BWM never brokered
or funded mortgage loans within the State of
North Carolina.
8. As a prerequisite to obtaining registration
as a mortgage banker, BWM was required to post
a $25,000.00 surety bond. Although BWM's
registration expired as of January 31, 2001
and has not been renewed, the bond
nevertheless remains in full force and effect.
The trial court concluded in part:
2. The payments transferred by FUNB-DE to BWM
from its corporate offices for each loan
purchased under the Agreement satisfies the
requirements of the Long-Arm Statute.
3. BWM conducted substantial activity in North
Carolina and therefore established the
requisite minimum contacts with the forum
state by receiving said payments from this
state, by becoming registered as a mortgage
banker in North Carolina, and by posting a
bond in favor of the North Carolina
Commissioner of Banks which remains in full
force and effect.
4. By obtaining registration as a mortgage
banker under North Carolina law, BWM also
purposefully availed itself of the right to
conduct business in North Carolina.
5. This Court's exercise of in personam
jurisdiction over BWM does not offend
traditional notions of fair play and
substantial justice and comports with the Due
Process Clause of the Fourteenth Amendment to
the United States Constitution.
Defendants appeal.
II. Issue
Defendants' sole assignment of error is the trial court's
denial of defendants' motion to dismiss for lack of personal
jurisdiction.
III. In Personam Jurisdiction
[A]n appeal lies immediately from refusal by the trial court
to dismiss a cause for want of jurisdiction over the person where
the motion is made pursuant to G.S. 1A-1, Rule 12(b)(2).
Chamberlain v. Chamberlain, 70 N.C. App. 474, 475, 319 S.E.2d 670,
671,
disc. rev. denied, 312 N.C. 621, 323 S.E.2d 921
(1984). The
determination of whether a trial court can properly exercise
in
personam jurisdiction over a non-resident defendant requires a two-
part inquiry. First, the court must determine whether North
Carolina's long-arm statute, N.C. Gen. Stat. § 1-75.4 (2001),
permits the exercise of
in personam jurisdiction.
Cooper v.
Shealy, 140 N.C. App. 729, 732, 537 S.E.2d 854, 856 (2000) (
citing
ETR Corporation v. Wilson Welding Service, 96 N.C. App. 666, 386
S.E.2d. 766 (1990)). Second, the court must consider whether
exercising
in personam jurisdiction over the defendant comports
with the Due Process Clause of the Fourteenth Amendment to the
United States Constitution.
Id. See also, Bruggeman v. Meditrust
Acquisition Co., 138 N.C. App. 612, 614-15, 532 S.E.2d 215, 217,
disc. rev. denied, 353 N.C. 261, 546 S.E.2d 90 (2000).
A. North Carolina's Long-Arm Statute
Defendants contend that North Carolina's long-arm statute does
not permit the exercise of in personam jurisdiction over them. We
disagree. Our Courts have held that our long-arm statue should
receive liberal construction, favoring the finding of
jurisdiction. Starco, Inc. v. AMG Bonding and Ins. Services,
Inc., 124 N.C. App. 332, 338, 477 S.E.2d 211, 216 (1996) (citing
Marion v. Long, 72 N.C. App. 585, 325 S.E.2d 300, disc. review
denied, 313 N.C. 604, 330 S.E.2d 612 (1985)).
The long-arm statute provides for in personam jurisdiction
over a party, who, when service of process is made upon it, has
engaged in substantial activity within this State, whether such
activity is wholly interstate, intrastate, or otherwise. N.C.
Gen. Stat. § 1-75.4(1)(d). North Carolina's long-arm statute also
provides for in personam jurisdiction in any action which
[r]elates to goods, documents of title, or other things of value
shipped from this State by the plaintiff to the defendant on his
order or direction. N.C. Gen. Stat. § 1-75.4(5)(d). It is well
established that money is a thing of value contemplated under the
long-arm statute. See Cherry Bekaert & Holland v. Brown, 99 N.C.
App. 626, 630, 394 S.E.2d 651, 654-55 (1990) (citing Pope v. Pope,
38 N.C. App. 328, 248 S.E.2d 260 (1978)). Contacts found to
constitute substantial activity under the long-arm statute
include telephone conversations between out-of-state defendants and
North Carolina plaintiffs and one or more payments to out-of-state
payees with checks mailed from an in-state company's local checking
account. See Hiwassee Stables, Inc. v. Cunningham, 135 N.C. App.24, 519 S.E.2d 317 (1999) (single check written from in-state
account); ETR Corporation v. Wilson Welding Service, 96 N.C. App.
666, 667, 386 S.E.2d 766, 768 (1990) (payment of single invoice);
Cherry Bekaert & Holland v. Brown, 99 N.C. App. 626, 630-31, 394
S.E.2d 651, 655 (1990) (payments from in-state checking account).
Here, the trial court found all payments made to defendant
were mailed or wired from plaintiff's Charlotte, North Carolina
offices during the four years that defendant did business with the
plaintiff. The trial court further found that defendant registered
with the North Carolina Commissioner of Banks in North Carolina,
allowing it to both broker and fund mortgage loans within the state
of North Carolina. As a prerequisite for obtaining this
registration as a mortgage banker, defendant posted a $25,000
surety bond which remains in full force and effect in North
Carolina. Based on the findings of fact in the record, we affirm
the trial court's ruling that the exercise of in personam
jurisdiction over BWM met the requirements of North Carolina's
long-arm statute.
B. Due Process
When
in personam jurisdiction is alleged to exist under the
North Carolina long-arm statute, the question of authority raises
the question of whether the defendant has the minimum contacts
with North Carolina necessary to meet the requirements of due
process.
Replacements, Ltd. v. Midwesterling, 133 N.C. App. 139,
143, 515 S.E.2d 46, 49 (1999). Due Process requires defendant to
have sufficient minimum contacts with the forum state before beinghailed into court.
World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297, 62 L.Ed.2d, 490, 501 (1980
). Minimum contacts must
be such that the exercise of personal jurisdiction does not offend
'traditional notions of fair play and substantial justice.'
International Shoe Co. v. Washington, 326 U.S. 310, 316, 90 L.Ed.
95, 102 (1945) (
quoting Milliken v. Meyer, 311 U.S. 457, 463, 85
L.Ed. 278, 283(1940)).
The test for sufficient minimum contacts is not mechanical,
but instead requires individual consideration of the facts in each
case.
Fran's Pecans, Inc. v. Greene, 134 N.C. App. 110, 114, 516
S.E.2d 647, 650 (1999). In determining whether sufficient minimum
contacts exist, the Court should consider (1) the quantity of
contacts between defendants and North Carolina; (2) the nature and
quality of such contacts; (3) the source and connection of
plaintiff's cause of action to any such contacts; (4) the interest
of North Carolina in having this case tried here; and (5)
convenience to the parties.
Fran's Pecans, Inc. v. Greene, 134
N.C. App. 110, 114, 516 S.E.2d 647, 650 (1999) (
citing Marion v.
Long, 72 N.C. App. 585, 587, 325 S.E.2d 300, 302,
disc. rev.
denied, 313 N.C. 604, 330 S.E.2d 612 (1985).
In addition to the
minimum contacts inquiry, the Court should take into account (1)
whether defendants purposefully availed themselves of the privilege
of conducting activities in North Carolina,
International Shoe Co.
v. Washington, 326 U.S. 310, 319, 90 L.Ed. 95, 104 (1945), (2)
whether defendants could reasonably anticipate being brought into
court in North Carolina,
See World-Wide Volkswagen Corp. v.Woodson, 444 U.S. 286, 297, 62 L. Ed. 2d 490, 501 (1980), and (3)
the existence of any choice-of-law provision contained in the
parties' agreement.
See Burger King Corp. v. Rudzewicz, 471 U.S.
462, 481-82, 85 L. Ed. 2d 528, 547 (1985) (concluding that courts
should consider contractual choice-of-law provisions in determining
whether a defendant has purposefully availed itself of the
protection of the laws of the forum state).
Here, the trial court found that defendants purposefully
availed themselves of the right to conduct business activities in
North Carolina and had sufficient minimum contacts to establish
in
personam jurisdiction. Defendant purposefully registered in North
Carolina as a mortgage banker under North Carolina laws and posted
a $25,000 surety bond to obtain registration in North Carolina
which remains in full force and effect today. Defendant sold
plaintiff approximately forty-five loans during a four year period
and
received and accepted all payments from plaintiff's North
Carolina offices. The contract between the parties contained a
choice-of-law provision which stated the agreement shall be
construed according to the laws of North Carolina. We conclude
BWM engaged in sufficient minimum contacts with North Carolina to
satisfy Due Process and purposefully availed itself of the right to
conduct business in North Carolina. The trial court correctly
found that the exercise of
in personam jurisdiction over defendants
comports with Due Process.
IV. Conclusion
We affirm the trial court's order denying defendants' motion
to dismiss due to lack of personal jurisdiction and remand this
action to the trial court for further proceedings.
Affirmed and remanded.
Judges MCCULLOUGH and BRYANT concur.
*** Converted from WordPerfect ***