Converted WP file 051681-1

Appeal by plaintiff from order entered 9 September 2005 by Judge Jack A. Thompson in Lee County Superior Court. Heard in the Court of Appeals 19 October 2006.

Mark A. Key, for the plaintiff-appellant.

Bell, Davis & Pitt, P.A., by D. Anderson Carmen, for defendant-appellee Branch Banking and Trust Company.

    ELMORE, Judge.

    Tina Green (plaintiff) appeals from an order entered 9 September 2005 granting summary judgment to Branch Banking and Trust Company (BB&T) on both plaintiff's claims against BB&T and BB&T's counter-claim against plaintiff. After a thorough review of the record, we find plaintiff's contentions on appeal to be without merit; we therefore affirm the trial court's order of summary judgment.
    Plaintiff contracted with defendant NorthStar Homes to purchase a mobile home. Plaintiff bought the home and the lot onwhich it was to rest. The transaction was almost entirely funded through a loan borrowed from BB&T. Plaintiff borrowed $105,000.00 from BB&T, which held a security interest in the land and mobile home. The term of the loan was six months; plaintiff contends that she believed the loan to be a thirty-year mortgage. Plaintiff defaulted on the loan, and BB&T foreclosed on the property in March, 2004. Following the sale of the property, there was a deficiency balance of $43,991.08.
    On 11 June 2004, plaintiff filed a complaint alleging claims of unfair and deceptive trade practices, fraud, and negligence against BB&T.   (See footnote 1) In an order entered 15 December 2004, Judge Gary L. Locklear granted BB&T's motion to dismiss as to the fraud and negligence claims, and denied BB&T's motion to dismiss the unfair and deceptive trade practices claim. Following the dismissal, on 20 December 2004, BB&T filed an answer and counterclaimed for the deficiency balance. Plaintiff failed to reply to BB&T's counterclaim. On 9 September 2005, Judge Jack A. Thompson granted summary judgment to BB&T on both plaintiff's claims against BB&T and BB&T's counter-claim against plaintiff. It is from this order that plaintiff appeals.
    Plaintiff's sole contention is that the trial court erred in its grant of summary judgement on the ground that there weregenuine issues of material fact.   (See footnote 2) Because we find no genuine issues of material fact, plaintiff's first assignment of error is without merit.
    “On appeal [from an order of summary judgment], this Court's task is to determine whether, on the basis of the materials presented to the trial court, there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. A trial court's ruling on a motion for summary judgment is reviewed de novo because the trial court rules only on questions of law.” Wing v. Town of Landis, 165 N.C. App. 691, 693, 599 S.E.2d 431, 433 (2004) (internal citations omitted).
    A trial court must grant summary judgement “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 ajudgment as a matter of law.” N.C. Gen. Stat. § 1A-1, Rule 56(c) (2005). “Determining what constitutes a genuine issue of material fact requires consideration of whether an issue is supported by substantial evidence. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and means more than a scintilla or a permissible inference.” State ex rel. Cooper v. NCCS Loans, Inc., 174 N.C. App. 630, 638-39, 624 S.E.2d 371, 377 (2005) (internal quotations and citations omitted).
        A party may prevail on summary judgment if (1) it can prove that an essential element of the opposing party's claim is nonexistent, or (2) it can demonstrate through discovery that the opposing party has failed to produce evidence supporting an essential element of its claim. Once the moving party satisfies its burden of proof, the burden then shifts to the nonmoving party to set forth specific facts showing a genuine issue of material fact, or to provide a valid excuse for not doing so. If the nonmoving party does not take affirmative steps to defend its position with additional proof and instead rests on mere allegations or a denial of the pleadings, that party risks having judgment entered against it.

Page v. Bald Head Ass'n, 170 N.C. App. 151, 154-155, 611 S.E.2d 463, 465 (2005) (citations omitted).
    In this case, BB&T made its motion for summary judgment on 19 August 2005, alleging therein that there were no genuine issues of material fact and that, as a matter of law, none of the conduct alleged constituted an unfair trade practice.
        Under N.C. Gen. Stat. § 75-1.1(a) (2001), unfair or deceptive acts or practices in or affecting commerce, are unlawful. The necessary elements for a claim under N.C. Gen. Stat. § 75-1.1 are: “(1) an unfair ordeceptive act or practice, (2) in or affecting commerce, which (3) proximately caused actual injury to the claimant.” Boyce & Isley, PLLC v. Cooper, 153 N.C. App. 25, 35, 568 S.E.2d 893, 901 (2002). “A practice is unfair when it offends established public policy as well as when the practice is immoral, unethical, oppressive, unscrupulous, or substantially injurious to consumers.” Marshall v. Miller, 302 N.C. 539, 548, 276 S.E.2d 397, 403 (1981). A practice is deceptive if it “possesse[s] the tendency or capacity to mislead, or create[s] the likelihood of deception.” Overstreet v. Brookland, Inc., 52 N.C. App. 444, 453, 279 S.E.2d 1, 7 (1981).

Melton v. Family First Mortgage Corp., 156 N.C. App. 129, 133, 576 S.E.2d 365, 369 (2003). BB&T argues that it satisfied its burden of proof through the deposition of plaintiff and the affidavit of Bonita V. Russell. BB&T contends that this evidence established that plaintiff and her husband applied for a loan with BB&T, that they freely signed the Note and Deed of Trust without reading either, and that she lived on the land and in the home for more than four years and never made a payment. Indeed, plaintiff does not challenge any of these assertions. Instead, plaintiff argues primarily that her credit was too poor to have qualified for a loan. While BB&T's decision to loan plaintiff money may have been ill advised considering her lack of financial resources, doing so was neither unfair nor deceptive.
    Plaintiff's argument that this case is governed by Article 4 of the North Carolina Uniform Commercial Code is simply incorrect. Section 4-401 of the Code applies to the relationship between a bank and a depositor; it is not applicable to this case, in which a borrower is suing her creditor.     Likewise, plaintiff's argument that Judge Thompson's order for summary judgment amounted to a modification, amendment, or change to Judge Locklear's earlier refusal to dismiss the alleged unfair trade practice claim is clearly incorrect. “[A] Rule 12(b)(6) motion is addressed solely to the sufficiency of the complaint and does not prevent summary judgment from subsequently being granted based on material outside the complaint.” Industries, Inc. v. Construction, Co., 42 N.C. App. 259, 263, 257 S.E.2d 50, 53-54 (1979).
    Plaintiff also argues that while she contracted to borrow $105,000.00, only $89,444.00 are accounted for by invoices. We will not address this issue, as it is not properly before us. The amount was found to be proper in the foreclosure order entered 15 April 2004, and no appeal was taken from that order.
    Because we find that there were no genuine issues of material fact, the trial court's order of summary judgment is without error. Accordingly, we
    AFFIRM.
    Judges McCULLOUGH and JACKSON concur.
    Report per Rule 30(e).

Footnote: 1