GSNC

§ 25A-1. Scope of act.

This Chapter applies only to consumer credit sales as hereinafter defined, except that G.S. 25A-37, referral sales, applies to all sales of goods or services as provided therein. This Chapter does not apply to a bona fide direct loan transaction in which a lender makes a direct loan to a borrower, and such lender is not regularly engaged, directly or indirectly, in the sale of goods or the furnishing of services as defined in this Chapter.

Except for G.S. 25A-37, referral sales, those sales defined in G.S. 25A-2(b), and those sales with amounts financed in excess of twenty-five thousand dollars ($25,000) under G.S. 25A-2(a)(5), this Chapter does not apply to any party or transaction that is not also subject to the provisions of the Consumer Credit Protection Act (Federal Truth-in-Lending Act).

History

(1971, c. 796, s. 1; 1983, c. 686, s. 1; 2005-338, s. 1.)

Legal Periodicals. - For article discussing the scope of this Chapter and its impact on the agreement and performance stages of a consumer credit transaction, see 50 N.C.L. Rev. 767 (1972).

For survey of 1977 commercial law, see 56 N.C.L. Rev. 915 (1978).

For comment discussing usury limitations in North Carolina, in light of Western Auto Supply Co. v. Vick, 303 N.C. 30, 277 S.E.2d 360, aff'd on rehearing, 304 N.C. 191, 283 S.E.2d 101 (1981), see 18 Wake Forest L. Rev. 947 (1982).

CASE NOTES

Lender Not Engaged in Sale of Goods And Services. - Plaintiff borrowers' contention that bank was "indirectly" engaged in the furnishing of goods and services when it provided loan for a mobile home was supported by neither logic nor the plain language of this section. Collins v. Horizon Hous., Inc., 135 N.C. App. 227, 519 S.E.2d 534 (1999).

Class Actions Allowed. - When the General Assembly has wished to prevent class actions to enforce statutory claims for relief, where the relief sought was personal and penal in nature, it has said so expressly and unequivocally. The failure of the General Assembly to expressly prohibit class actions to enforce this statute convinces the Supreme Court that it intended to allow them for such purposes. Crow v. Citicorp Acceptance Co., 319 N.C. 274, 354 S.E.2d 459 (1987).

The court upheld the certification of a class comprising of Chapter 7 debtors whose cases were pending in the bankruptcy courts of the Eastern and Middle Districts of North Carolina on the date of certification who had a Sears revolving charge account governed by this Act that included a balance, as of each debtor's petition date, which represented the credit purchases of at least two items of personal property on which Sears retained security interests. Coggin v. Sears, Roebuck & Co., 155 Bankr. 934 (Bankr. E.D.N.C. 1993).

Pro Rata Application of Payments to Consolidated Purchases Allowed. - The North Carolina Retail Installment Sales Act provides a method for applying payments to consolidated purchases on a pro rata basis. In re Sherman, 126 Bankr. 684 (Bankr. E.D.N.C. 1987).

Transaction Held Not Consumer Credit Sale - Retail Installment Sales Act, G.S. 25A, did not apply where a creditor's financing of a debtor's motorcycle purchase was not a consumer credit sale. Worley v. GE Moneybank (In re Worley), - Bankr. - (Bankr. E.D.N.C. June 16, 2008).

Applied in Simmons v. C.W. Myers Trading Post, Inc., 56 N.C. App. 549, 290 S.E.2d 710 (1982).

Cited in State ex rel. Edmisten v. J.C. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977); Addison v. Britt, 83 N.C. App. 418, 350 S.E.2d 158 (1986); Westminster Co. v. Union Mut. Stock Life Ins. Co. of Am., 95 N.C. App. 117, 381 S.E.2d 857 (1989).

§ 25A-2. "Consumer credit sale" defined.

Except as provided in subsection (c) of this section, a "consumer credit sale" is a sale of goods or services in which
1. The seller is one who in the ordinary course of business regularly extends or arranges for the extension of consumer credit, or offers to extend or arrange for the extension of such credit,
2. The buyer is a natural person,
3. The goods or services are purchased primarily for a personal, family, household or agricultural purpose,
4. Either the debt representing the price of the goods or services is payable in installments or a finance charge is imposed, and
5. The amount financed does not exceed seventy-five thousand dollars ($75,000) or, in the case of a debt secured by real property or a manufactured home as defined in G.S. 143-145(7), regardless of the amount financed.
"Sale" includes but is not limited to any contract in the form of a bailment or lease if the bailee or lessee contracts to pay as compensation for use a sum substantially equivalent to or in excess of the aggregate value of the goods and services involved, and it is agreed that the bailee or lessee will become, or for no other or for a nominal consideration, has the option to become, the owner of the goods and services upon full compliance with his obligations under such contract.
1. The contract obligates the bailor or lessor to transfer ownership of the property to the bailee or lessee for no other or a nominal consideration (no more than ten percent (10%) of the cash price of the property at the time the bailor or lessor initially enters into the contract with the bailee or lessee) upon the making of a specified number of payments by the bailee or lessee; and
2. The dollar total of the specified number of payments necessary to exercise the purchase option is more than ten percent (10%) in excess of the aggregate value of the property and services involved. For the purposes of this subsection, the value of goods shall be the average cash retail value of the goods. The value of services shall be the average retail value, if any, of such services, as determined by substantial cash sales of such services. If a contract is found to be a sale under this subsection, these values shall be used to determine the amount financed for purposes of G.S. 25A-15.
A sale in which the seller allows the buyer to purchase goods or services pursuant to a credit card issued by someone other than a seller that is engaged in part or entirely in the business of selling goods or services or similar arrangement is not a consumer credit sale. A sale in which the seller allows the buyer to purchase goods or services pursuant to a credit card issued by the seller, a subsidiary or a parent corporation of the seller, a principal supplier of the seller or any corporation having shareholders in common with the seller holding over twenty-five percent (25%) of the voting stock in each corporation is a consumer credit sale within the terms of this Chapter.
For the purposes of this Chapter, a consumer credit sale shall be deemed to have been made in this State, and therefore subject to the provisions of this Chapter, if the seller offers or agrees in this State to sell to a buyer who is a resident of this State, or if such buyer accepts or makes the offer in this State to buy, regardless of the situs of the contract as specified therein.
If an advertisement for a terminable bailment or lease defined as a sale in subsection (b) above states the amount of any payment, the advertisement must also clearly and conspicuously state the following items, as applicable:
1. A statement that the transaction advertised is a lease;
2. The total amount of periodic payments necessary to acquire ownership or a statement that the consumer has the option to purchase the property and at what time;
3. That the consumer acquires no ownership rights if either the property is not leased for the term required for ownership to transfer or the terms of purchase are not otherwise satisfied.

The term also includes a contract in the form of a terminable bailment or lease of goods or services in which the bailee or lessee can renew the bailment or lease contract periodically by making the payment or payments specified in the contract if:

Any solicitation or communication to sell, oral or written, originating outside of this State, but forwarded to and received in this State by a buyer who is a resident of this State, shall be deemed to be an offer or agreement to sell in this State.

Any solicitation or communication to buy, oral or written, originating within this State, from a buyer who is a resident of this State, but forwarded to and received by a retail seller outside of this State, shall be deemed to be an acceptance or offer to buy in this State.

If an advertisement for a terminable bailment or lease defined as a sale in subsection (b) above refers to the right to acquire ownership, the advertisement must clearly and conspicuously state whether or not the consumer may terminate the lease at any time without penalty and that the consumer acquires no ownership rights if either the property is not leased for the term required for ownership to transfer or the terms of purchase are not otherwise satisfied.

No one shall advertise in connection with any terminable bailment or lease defined as a sale in subsection (b) above the ownership option as a means of deceiving any lessee into believing that he is purchasing the item of personal property.

History

(1971, c. 796, s. 1; 1979, c. 706, s. 1; 1981, c. 970, s. 2; 1983, c. 686, ss. 2, 3; 1987, c. 282, s. 5; 1991, c. 602, s. 1; 2005-338, s. 2.)

Legal Periodicals. - For survey of 1982 commercial law, see 61 N.C.L. Rev. 1018 (1983).

CASE NOTES

Transaction Held Not Consumer Credit Sale. - A transaction whereby the seller would forbear collection of an amount due from the buyer on an open-end credit plan and reduce interest rates, and the buyer would execute a promissory note to the seller and give the seller a deed of trust on a farm to secure the note was not a "consumer credit sale" within the meaning of this section, but rather constituted a novation of the old agreement. Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977).

Retail Installment Sales Act, G.S. 25A, did not apply since the creditor's financing of a debtor's motorcycle purchase was not a consumer credit sale. Worley v. GE Moneybank (In re Worley), - Bankr. - (Bankr. E.D.N.C. June 16, 2008).

Applied in Commercial Credit Equip. Corp. v. Thompson, 48 N.C. App. 594, 269 S.E.2d 286 (1980); In re Frady, 141 Bankr. 600 (Bankr. W.D.N.C. 1991).

Cited in GECC v. Ball, 40 N.C. App. 586, 253 S.E.2d 574 (1979); Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75 (1984).

§ 25A-3. "Payable in installments" defined.

A debt is "payable in installments" when the buyer is required or permitted by agreement to make payment in more than four installments, excluding a down payment, and whether or not a finance charge is imposed by the seller.

History

(1971, c. 796, s. 1.)

§ 25A-4. "Goods" defined.

"Goods" means all things which are moveable at the time of the sale or at the time the buyer takes possession, including goods not in existence at the time the transaction is entered into and goods which are furnished or used at the time of sale or subsequently in modernization, rehabilitation, repair, alteration, improvement or construction on real property so as to become a part thereof whether or not they are severable therefrom. "Goods" also includes merchandise certificates.
"Merchandise certificate" means a writing issued by a seller not redeemable in cash and usable in its face amount in lieu of cash in exchange for goods and services.

History

(1971, c. 796, s. 1.)

§ 25A-5. "Services" defined.

"Services" includes:
1. Work, labor, and other personal services; and
2. Privileges with respect to transportation, hotel and restaurant accommodations, education, entertainment, recreation, physical culture, hospital accommodations, funerals and other similar services.
"Services" does not include:
1. Services for which the cost is by law fixed or approved by or filed with or subject to approval or disapproval by the United States or the State of North Carolina or any agency, instrumentality or subdivision thereof;
2. Insurance premiums financing covered by G.S. 58-35-1 to 58-35-95 and G.S. 58-3-145; or
3. Insurance provided by an insurer that is licensed to do business in this State.

History

(1971, c. 796, s. 1.)

CASE NOTES

Applied in Westminster Co. v. Union Mut. Stock Life Ins. Co. of Am., 95 N.C. App. 117, 381 S.E.2d 857 (1989).

§ 25A-6. "Seller" defined.

"Seller" means one regularly engaged in the business of selling goods or services. Unless otherwise provided, "seller" also means and includes an assignee of the seller's right to payment but use of the term does not itself impose on an assignee any obligation of the seller with respect to events occurring before the assignment.

History

(1971, c. 796, s. 1.)

§ 25A-7. "Cash price" defined.

"Cash price" of goods and services means the price at which the goods or services are offered for sale by the seller to cash buyers in the ordinary course of business and may include:

Applicable sales, use, and excise and documentary stamp taxes; and
The cash price of accessories or related services such as installation, delivery, servicing, repairs or alterations.

History

(1971, c. 796, s. 1.)

CASE NOTES

Applied in In re Frady, 141 Bankr. 600 (Bankr. W.D.N.C. 1991).

§ 25A-8. "Finance charge" defined.

"Finance charge" means the sum of all charges payable directly or indirectly by the buyer and imposed by the seller as an incident to the extension of credit, including any of the following types of charges which are applicable:
1. Interest, time price differential, service, carrying or other similar charge however denominated;
2. Premium or other charges for any guarantee or insurance protecting the seller against the buyer's default or other credit loss;
3. Loan fee, finder's fee or similar charge; and
4. Fee for an appraisal, investigation or credit report.
Finance charge does not include transfer of equity fees, substitution of collateral fees, default or deferment charges, or additional charges for insurance as permitted by G.S. 25A-17 or charges for insurance excluded by Section 226.4(a) of Regulation Z promulgated pursuant to section 105 of the Consumer Credit Protection Act.
With respect to a transaction in which the seller acquires a security interest in real property, finance charge does not include charges excluded by section 226.4(e) of Regulation Z promulgated pursuant to section 105 of the Consumer Credit Protection Act.

History

(1971, c. 796, s. 1.)

§ 25A-9. "Amount financed" defined.

"Amount financed" means the total of the following to the extent that payment is deferred by the seller:
1. The cash price of the goods or services less the amount of any down payment whether made in cash or property traded in,
2. The amount actually paid or to be paid by the seller pursuant to an agreement with the buyer to discharge a security interest or lien on property traded in,
3. Additional charges for insurance described in G.S. 25A-8(b) and charges referred to in G.S. 25A-8(c), and
4. Official fees as described in G.S. 25A-10, to the extent they are itemized and disclosed to the buyer.
If not included in the cash price, the amount financed includes any applicable sales, use or documentary stamp taxes and any amount actually paid or to be paid by the seller for registration, certificate of title or license fees.

History

(1971, c. 796, s. 1.)

CASE NOTES

Purchase-Money Security Interest. - Negative equity and gap insurance do not come within the definition of "purchase money obligation," and thus cannot give rise to a purchase money security interest. Wells Fargo Fin. N.C. 1, Inc. v. Price, - F. Supp. 2d - (E.D.N.C. Nov. 14, 2007).

§ 25A-10. "Official fees" defined.

"Official fees” means any of the following:

Fees and charges prescribed by law that actually are or will be paid by the seller for determining the existence of or for perfecting, releasing, or satisfying a security interest related to a consumer credit sale.
Premiums payable for insurance in lieu of perfecting a security interest otherwise required by the seller in connection with a consumer credit sale if the premium does not exceed the fees or charges described in subdivision (1) of this section that would otherwise be payable.

History

(1971, c. 796, s. 1; 2021-159, s. 2(a).)

Editor's Note. - Session Laws 2021-159, s. 2(c), made this section, as amended by Session Laws 2021-159, s. 2(a), effective October 1, 2021, and applicable to contracts entered into, renewed, or modified on or after that date.

Effect of Amendments. - Session Laws 2021-159, s. 2(a), substituted "means any of the following" for "means" in the introductory language; in subdivision (1), substituted "by the seller" for "to public officials" and "sale" for "sale; or"; and made minor stylistic changes. For effective date and applicability, see editor's note.

§ 25A-11. "Revolving charge account contract" defined.

"Revolving charge account contract" means an agreement or understanding between a seller and a buyer under which consumer credit sales may be made from time to time, under the terms of which a finance charge or service charge is to be computed in relation to the buyer's unpaid balance from time to time, and under which the buyer has the privilege of paying the balance in full or in installments. This definition shall not affect the meaning of the term "revolving charge account" appearing in G.S. 24-11(a).

History

(1971, c. 796, s. 1.)

CASE NOTES

Cited in State Whsle. Supply, Inc. v. Allen, 30 N.C. App. 272, 227 S.E.2d 120 (1976).

§ 25A-12. "Consumer credit installment sale contract" defined.

"Consumer credit installment sale contract" means the agreement between a buyer and a seller in a consumer credit sale other than a sale made pursuant to a revolving charge account.

History

(1971, c. 796, s. 1.)

§ 25A-13. "Consumer Credit Protection Act" defined.

"Consumer Credit Protection Act" means the Consumer Credit Protection Act, an act of Congress of May 29, 1968, as amended (Public Law 90-321; 82 Stat. 146; 15 U.S.C. 1601 et seq.), and regulations and rulings promulgated thereunder.

History

(1971, c. 796, s. 1.)

§ 25A-14. Finance charge rates and service charge for revolving charge account contracts.

The finance-charge rate and either the annual charge or the monthly service charge for a consumer credit sale made under a revolving charge account contract may not exceed the rates and charge provided for revolving credit by G.S. 24-11.
In the event the revolving charge account contract is secured in whole or in part by a security interest in real property, then the finance-charge rate shall not exceed the rate set out in G.S. 25A-15(d).
No default or deferral charge shall be imposed by the seller in connection with a revolving charge-account contract, except as specifically provided for in G.S. 24-11(d1).

History

(1971, c. 796, s. 1; 1983, c. 126, s. 7; 1991, c. 506, s. 7.)

§ 25A-15. Finance charge rates for consumer credit installment sale contracts.

With respect to a consumer credit installment sale contract, a seller may contract for and receive a finance charge not exceeding that permitted by this section. For the purposes of this section, the finance charge rates are the rates that are required to be disclosed by the Consumer Credit Protection Act, except that official fees under G.S. 25A-10 shall be (i) included in the amount financed to the extent payment is deferred by the seller and (ii) excluded from the finance charge.
Except as provided in this section, the finance charge rate imposed for a consumer credit installment sale contract shall not exceed the following rate except that a minimum finance charge of five dollars ($5.00) may be imposed:
1. Twenty-four percent (24%) per annum where the amount financed is less than one thousand five hundred dollars ($1,500).
2. Twenty-two percent (22%) per annum where the amount financed is one thousand five hundred dollars ($1,500) or greater, but less than two thousand dollars ($2,000).
3. Twenty percent (20%) where the amount financed is two thousand ($2,000) or greater, but less than three thousand dollars ($3,000).
4. Eighteen percent (18%) per annum where the amount financed is three thousand dollars ($3,000) or greater.
A finance charge rate not to exceed the higher of the rate established in subsection (b) of this section or the rate set forth below may be imposed in a consumer credit installment sale contract repayable in not less than six installments for a self-propelled motor vehicle:
1. Eighteen percent (18%) per annum for vehicles one and two model years old.
2. Twenty percent (20%) per annum for vehicles three model years old.
3. Twenty-two percent (22%) per annum for vehicles four model years old.
4. Twenty-nine percent (29%) per annum for vehicles five model years old and older.
Notwithstanding subsections (b) and (c) of this section, in the event that the amount financed in a consumer credit sale contract is secured in whole or in part by a security interest in real property, the finance charge rate shall not exceed sixteen percent (16%) per annum.
A seller shall not divide a single credit sale transaction into two or more sales to avoid the limitations as to maximum finance charges imposed by this section.
Notwithstanding subsections (b) and (d) of this section, the parties to a consumer credit installment sale contract for the sale of a residential manufactured home that is secured by a first lien on that home or on the land on which the home is located may contract in writing for the payment of a finance charge as agreed upon by the parties. This subsection only applies if the parties are entitled to so contract by Section 501 of United States Public Law 96-221, and have complied with the regulations adopted under it.

A motor vehicle is one model year old on January 1 of the year following the designated year model of the vehicle.

For the purposes of this subsection, a "residential manufactured home" means a manufactured home as defined in G.S. 143-145 that is used as a dwelling.

History

(1971, c. 796, s. 1; 1979, 2nd Sess., c. 1330, ss. 1, 2; 1981, c. 446, ss. 1-3; 1983, c. 126, s. 2; 2021-159, s. 2(b).)

Editor's Note. - Session Laws 2021-159, s. 2(c), made this section, as amended by Session Laws 2021-159, s. 2(b), effective October 1, 2021, and applicable to contracts entered into, renewed, or modified on or after that date.

Effect of Amendments. - Session Laws 2021-159, s. 2(b), rewrote the section. For effective date and applicability, see editor's note.

Legal Periodicals. - For article calling for a comprehensive federal consumer credit code, see 58 N.C.L. Rev. 1 (1979).

For note, "Civil Procedure - A Definition of 'Class' Under North Carolina Rule 23 - Crow v. Citicorp Acceptance Co.," see 23 Wake Forest L. Rev. 491 (1988).

CASE NOTES

Subsection (d) Not Applicable to Novation. - Where the transaction in question was not a "consumer credit sale" under this Chapter but a novation, the restrictions of subsection (d) of this section would not be applicable. Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977).

§ 25A-16. Transfer of equity.

If a buyer voluntarily transfers his rights in collateral pursuant to applicable law and the seller agrees, the seller may impose a transfer fee not to exceed ten percent (10%) of the unpaid balance of the debt or thirty-five dollars ($35.00), whichever is less.

History

(1971, c. 796, s. 1; 2000-169, s. 31.)

§ 25A-17. Additional charges for insurance.

As to revolving charge account contracts defined in G.S. 25A-11, in addition to the finance charges permitted in G.S. 24-11(a), a seller in a consumer credit sale may contract for and receive additional charges or premiums (i) for insurance written in connection with any consumer credit sale, against loss of or damage to property securing the debt pursuant to G.S. 25A-23, provided a clear, conspicuous and specific statement in writing is furnished by the seller to the buyer setting forth the cost of the insurance if obtained from or through the seller and stating that the buyer may choose the insurer through which the insurance is obtained; (ii) for credit life, credit accident and health, or credit unemployment insurance, written in connection with any consumer credit sale, provided the insurance coverage is not required by the seller and this fact is clearly disclosed to the buyer, and any buyer desiring such insurance coverage gives affirmative indication of such desire after disclosure of the cost of such insurance.
As to revolving charge account contracts defined in G.S. 25A-11, insurance that is required by a seller and is not an additional charge permitted by subsection (a) of this section, shall be included in the finance charge as computed according to G.S. 24-11(a).
As to consumer credit installment sale contracts defined in G.S. 25A-12, in addition to the finance charges permitted in G.S. 25A-15, a seller in a consumer credit sale may contract for and receive additional charges or premiums (i) for insurance written in connection with any consumer credit sale, for loss of or damage to property or against liability arising out of the ownership or use of property, provided a clear, conspicuous and specific statement in writing is furnished by the seller to the buyer setting forth the cost of the insurance if obtained from or through the seller and stating that the buyer may choose the person through which the insurance is to be obtained; (ii) for credit life, credit accident and health, or credit unemployment insurance, written in connection with any consumer credit sale, provided the insurance coverage is not required by the seller and this fact is clearly and conspicuously disclosed in writing to the buyer; and any buyer desiring such insurance coverage gives specific dated and separately signed affirmative written indication of such desire after receiving written disclosure to him of the cost of such insurance.

History

(1971, c. 796, s. 1; 1993, c. 226, s. 15.)

§ 25A-18. Confession of judgment.

A buyer may not authorize any person to confess judgment on a claim arising out of a consumer credit sale. An authorization in violation of this section is void.

History

(1971, c. 796, s. 1.)

CASE NOTES

Cited in Burton v. Blanton, 107 N.C. App. 615, 421 S.E.2d 381 (1992).

§ 25A-19. Acceleration.

With respect to a consumer credit sale, the agreement may not provide for repossession of any goods or acceleration of the time when any part or all of the time balance becomes payable other than for breach by the buyer of any promise or condition clearly set forth in the agreement.

History

(1971, c. 796, s. 1.)

§ 25A-20. Disclaimer of warranty.

With respect to any consumer credit sale, the agreement may not contain any provision limiting, excluding, modifying or in any manner altering the terms of any express warranty given by any seller (excluding assignees) to any buyer and made a part of the basis of the bargain between the original parties.

History

(1971, c. 796, s. 1.)

CASE NOTES

Applied in Simmons v. C.W. Myers Trading Post, Inc., 307 N.C. 122, 296 S.E.2d 294 (1982).

Cited in Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75 (1984).

§ 25A-21. Attorneys' fees.

With respect to a consumer credit sale:

In the event that the seller institutes a suit and prevails in the litigation and obtains a money judgment, the presiding judge shall allow a reasonable attorney's fee to the duly licensed attorney representing the seller in such suit, said attorney's fee to be taxed to the buyer as part of the court costs.
In the event that a seller instituting suit does not prevail in the litigation, the presiding judge shall allow a reasonable attorney's fee to the duly licensed attorney representing the buyer in such suit, said attorney's fee to be taxed to the seller as a part of the court costs.

History

(1971, c. 796, s. 1.)

§ 25A-22. Receipts for payments; return of title documents upon full payment.

When any payment is made under any consumer credit sale transaction, the person receiving such payment shall, if the payment is made in cash, give the buyer a written receipt therefor. If the buyer specifies that the payment is made on one of several obligations, the receipt shall so state.
Upon the payment of all sums for which the buyer is obligated under a consumer credit sale, the seller shall promptly release any security interest in accordance with the terms of G.S. 25-9-513 or G.S. 20-58.4, whichever is applicable. In the event a security interest in real property is involved, the seller shall take such action as is necessary to enable the lien to be discharged of record under the provisions of G.S. 45-37.

History

(1971, c. 796, s. 1; 2000-169, s. 32.)

§ 25A-23. Collateral taken by the seller.

The seller in a consumer credit sale may take a security interest only in the following property of the buyer to secure the debt arising from the sale:
1. The property sold,
2. Property previously sold by the seller to the buyer and in which the seller has an existing security interest,
3. Personal property to which the property sold is installed, if the amount financed is more than three hundred dollars ($300.00),
4. Real property to which the property sold is affixed, if the amount financed is more than one thousand dollars ($1,000), and
5. A self-propelled motor vehicle to which repairs are made, if the amount financed exceeds one hundred dollars ($100.00).
6. Any property which is used for agricultural purposes, if the property sold is to be used in the operation of an agricultural business.
A security interest taken in property other than that permitted in subsection (a) of this section shall be void and not enforceable.
Nothing in this section shall affect any right or liens granted by Chapter 44A of the General Statutes.
The provisions of G.S. 24-11(a), limiting the taking of a security interest in property under an open end credit or similar plan, shall not apply to revolving charge account contracts regulated by this Chapter; provided, however, the application of payments rule set out in G.S. 25A-27 shall apply to such contracts; provided further, that in any action initiated by the seller for the possession of such property, a judgment for the possession thereof shall be restricted to commercial units (as defined in G.S. 25-2-105(6)) for which the cash price was one hundred dollars ($100.00) or more.

History

(1971, c. 796, s. 1; 1977, c. 508; c. 789, s. 1.)

CASE NOTES

Cited in Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977); Sears, Roebuck & Co. v. Vandeusen, 155 Bankr. 358 (E.D.N.C. 1993).

§ 25A-24. Identification of instruments of indebtedness.

With respect to consumer credit sales, each instrument of indebtedness shall be identified on the face of the instrument as a consumer credit document, or otherwise clearly indicate on its face that it arises out of a consumer credit sale, provided, that such designation of an instrument of indebtedness regarding as sale which is not by definition a "consumer credit sale," shall not solely because of such designation cause the transaction to be a consumer credit sale.

History

(1971, c. 796, s. 1.)

§ 25A-25. Preservation of consumers' claims and defenses.

In a consumer credit sale, a buyer may assert against the seller, assignee of the seller, or other holder of the instrument or instruments of indebtedness, any claims or defenses available against the original seller, and the buyer may not waive the right to assert these claims or defenses in connection with a consumer credit sales transaction. Affirmative recovery by the buyer on a claim asserted against an assignee of the seller or other holder of the instrument of indebtedness shall not exceed amounts paid by the buyer under the contract.
Every consumer credit sale contract shall contain the following provision in at least ten-point boldface type:
Compliance with the requirements of the Federal Trade Commission rule on preservation of consumer claims and defenses is considered full compliance with this act.

NOTICE

ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.

History

(1971, c. 796, s. 1; 1977, c. 921.)

CASE NOTES

Defense Not Available. - Where homeowners obtained a loan for construction of a swimming pool on their property, and the homeowners alleged that the company constructing the pool fraudulently induced the homeowners to endorse and deliver checks to the company, such fraud could not be asserted against the lender to warrant reformation of the note since the homeowners did not allege any fraudulent misrepresentation on the part of the lender with regard to the note. Capparelli v. Amerifirst Home Improvement Fin. Co., 535 F. Supp. 2d 554 (E.D.N.C. 2008).

Applied in GECC v. Ball, 40 N.C. App. 586, 253 S.E.2d 574 (1979); Commercial Credit Equip. Corp. v. Thompson, 48 N.C. App. 594, 269 S.E.2d 286 (1980); State ex rel. Easley v. Rich Food Servs., Inc., 139 N.C. App. 691, 535 S.E.2d 84 (2000).

Cited in ITT-Industrial Credit Co. v. Milo Concrete Co., 31 N.C. App. 450, 229 S.E.2d 814 (1976).

§ 25A-26. Substitution of collateral.

Subject to the provisions of G.S. 25A-23, if all involved parties agree, there may be a substitution of collateral under a security instrument in a consumer credit sale. For such substitution, the seller may impose a fee not to exceed ten percent (10%) of the unpaid balance of the debt or fifteen dollars ($15.00), whichever is less.

History

(1971, c. 796, s. 1.)

§ 25A-27. Application of payments.

Where a seller in a consumer credit sale makes a subsequent sale to a buyer and takes a security interest pursuant to G.S. 25A-23 in goods previously purchased by the buyer from the seller, the seller shall make application of payments received, for the purpose of determining the amount of the debt secured by the various security interests, as follows:
1. The entire amount of all payments made prior to such subsequent purchase shall be deemed to have been applied to the previous purchases, and
2. Unless otherwise designated by the buyer, the amount of down payment on such subsequent purchase shall be applied to the subsequent purchase, and
3. All subsequent payments shall be applied first to finance charges and then to principal. The application of payments to principal shall be applied to the various purchases on the basis that the first sums paid in shall be deemed applied to the oldest purchase or obligation assumed to satisfy the original debt secured by the purchase money security interest until payment is received in full and other payments shall be applied accordingly to all other purchases in the order that each obligation is assumed. At the time any original debt would have been satisfied by subsequent payments, the purchase money security interest in said purchase shall be extinguished.
Where a seller and a buyer agree to consolidate two or more consumer credit installment sale contracts pursuant to G.S. 25A-31, the seller shall apply payments received, for the purpose of determining the amount of the debt secured by the various security interests, as follows:
1. The entire amount of all payments received prior to the consolidation shall be applied to the respective contracts under which the payments were made, and
2. All subsequent payments shall be applied first to finance charges and then to principal. The application of payments to principal shall be applied to the various purchases on the basis that the first sums paid in shall be deemed applied to the oldest purchase or obligation assumed to satisfy the original debt secured by the purchase money security interest until payment is received in full and other payments shall be applied accordingly to all other purchases in the order that each obligation is assumed. At the time any original debt would have been satisfied by subsequent payments, the purchase money security interest in said purchase shall be extinguished.
For payments received by a seller on or after October 1, 1988, but before October 1, 1993, a seller may elect to apply the provisions of this section as the section read October 1, 1993, or as the section read September 30, 1993. A seller made this election when the seller determined, and disclosed to the buyer, how payments received on a consumer credit sale would be applied: either on a proportional basis or on a "first in - first out" basis with the payments applied first to finance charges and then to principal in the order that each obligation is assumed.
The exclusive remedy for failure of a seller to apply payments of a buyer as required by subdivision (a)(3) or (b)(2) of this section during the period October 1, 1993, through October 1, 1996, is an order that the seller apply the payments as required by those provisions.

History

(1971, c. 796, s. 1; 1993, c. 370, s. 2; 1993 (Reg. Sess., 1994), c. 745, s. 38.3(a).)

CASE NOTES

Editor's Note. - The cases below were decided under this section prior to the 1993 amendment of subdivisions (a)(3) and (b)(2), which formerly provided for proportional application of payments.

This section was drafted for the protection of both merchant and consumer, not just the merchant. Dossenbach's of Clinton, Inc. v. Bartelt (In re Beasley), 23 Bankr. 404 (Bankr. E.D.N.C. 1982).

Section clearly places the burden of apportionment of payments upon the seller. If the creditor-seller wishes to avail itself of the benefits of this statute, the creditor-seller must apportion the debtor-purchaser's payments when they are made and not wait for litigation to ensue. It would even seem appropriate for the retail installment contract or purchase-money instrument to provide for the apportionment of payments as specified in the statute so that the debtor-purchaser would be fully informed of the fact that the creditor-seller intends to exercise its rights under this statute in the event of default. Otherwise, the merchants might be inclined to assert a security interest in an item of property to the full extent of the total debt even though there was only a lesser sum owed on the balance of the purchase price of that item of property. Dossenbach's of Clinton, Inc. v. Bartelt (In re Beasley), 23 Bankr. 404 (Bankr. E.D.N.C. 1982).

The apportionment requirements of this section inherently recognize the continuing purchase money nature of installment sale contracts which are consolidated in that payments must be applied to the various contracts in the same proportion or ratio as the original cash prices in the various contracts bear to one another. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

Payments Must Be Applied as Stated in Subsection (b). - As G.S. 25A-31(b) reveals, the only statutory requirement governing the terms of refinancing or consolidation agreements is that the agreements must be in writing, dated, and signed by the parties. However, upon consolidation of two or more installment sale contracts, the seller must apply payments as set out in subsection (b) of this section. The purpose of such application is to permit a determination of the amount of the debt secured by each of the various security agreements. A similar application is required where a seller in a consumer credit sale makes a subsequent sale to a buyer and takes a security interest in goods previously purchased by the buyer from the seller. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

In the event a dispute arises concerning application of payments, the statutory guidelines established by this section must be followed. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

Compliance Required. - Revolving chart account requiring that finance charges for newly purchased goods be satisfied before payments would be applied to previously purchased items expanded the existing security interest in prior purchases to secure not only their own purchase price but also the payment of finance charges on items bought later was an agreement that created a security interest in previously purchased property, and thereby required compliance with the apportionment provisions of this section. Sears, Roebuck & Co. v. Vandeusen, 155 Bankr. 358 (E.D.N.C. 1993).

Cited in In re Sherman, 126 Bankr. 684 (Bankr. E.D.N.C. 1987).

§ 25A-28. Form of consumer credit installment sale contract.

Every consumer credit installment sale contract shall be in writing, dated and signed by the buyer.

History

(1971, c. 796, s. 1.)

Legal Periodicals. - For survey of North Carolina construction law, with particular reference to unfair or deceptive acts or practices, see 21 Wake Forest L. Rev. 633 (1986).

CASE NOTES

Cited in Varnell v. Henry M. Milgrom, Inc., 78 N.C. App. 451, 337 S.E.2d 616 (1985).

§ 25A-29. Default charges.

If any installment is past due for 10 days or more according to the original terms of the consumer credit installment sale contract, a default charge may be made in an amount of fifteen dollars ($15.00). A default charge may be imposed only one time for each default.
If a default charge is deducted from a payment made on the contract and the deduction results in a subsequent default on a subsequent payment, no default charge may be imposed for the default.
If a default charge has been once imposed with respect to a particular default in payment, no default charge shall be imposed with respect to any future payments which would not have been in default except for the previous default.
A default charge for any particular default shall be deemed to have been waived by the seller unless, within 45 days following the default, (i) the charge is collected or (ii) written notice of the charge is sent to the buyer.

History

(1971, c. 796, s. 1; 2017-45, s. 1.)

Editor's Note. - Session Laws 2017-45, s. 2, made the rewriting of this section by Session Laws 2017-45, s. 1, effective June 26, 2017, and applicable to charges imposed on or after that date.

Effect of Amendments. - Session Laws 2017-45, s. 1, rewrote the section. For effective date and applicability, see editor's note.

Session Laws 2017-45, s. 1, effective June 26, 2017, added designations (a) through (d), substituted "of fifteen dollars ($15.00)" for "not to exceed five percent (5%) of the installment past due or six dollars ($6.00), whichever is the lesser" at the end of the sentence in (a) and substituted "the" for "such" in two places in (b).

CASE NOTES

Applied in Steed v. First Union Nat'l Bank, 58 N.C. App. 189, 293 S.E.2d 217 (1982).

§ 25A-30. Deferral charges.

A seller may, by agreement with the buyer, defer the due date of all or any part of one or more installments under an existing consumer credit installment sale contract.
Except as provided by subsections (e) and (f) of this section, a deferral agreement must be in writing, dated and signed by the parties.
A deferral agreement may provide for a deferral charge not to exceed the rate of one and one-half percent (11/2%) of each installment for each month from the date which such installment or part thereof would otherwise have been payable to the date when such installment or part thereof is made payable under the deferral agreement.
If a deferral charge is made pursuant to a deferral agreement, a default charge provided in G.S. 25A-29 may be imposed only if the installment as deferred is not paid when due and no new deferral agreement is entered into with respect to that installment.
If the deferral agreement extends the due date of only one installment, the agreement need not be in writing.
A deferral agreement for which no charge is made shall not be subject to subsections (b), (c) or (d) of this section.

History

(1971, c. 796, s. 1.)

§ 25A-31. Consolidation and refinancing.

A seller and a buyer may agree at any time to refinance an existing consumer credit installment sale contract or to consolidate into a single debt repayable on a single schedule of payments, two or more consumer credit installment sale contracts.
A refinancing or consolidation agreement must be in writing, dated and signed by the parties.
The refinancing or consolidation agreement may provide for a finance charge which shall not exceed the rates provided in G.S. 25A-15, with the amount financed being the unpaid time balance of the contract or contracts refinanced or consolidated, less the rebate provided by G.S. 25A-32. In computing the rebate to be credited to the previous time balances for purposes of this section, no prepayment charge shall be imposed.

History

(1971, c. 796, s. 1.)

CASE NOTES

This section recognizes the right of a seller and buyer to consolidate one consumer credit installment sale contract with another. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

However, a seller's willingness to consolidate or refinance may be affected by recent bankruptcy decisions. Several bankruptcy courts have held that the purchase money status of a consumer credit installment sale may be lost when refinanced or consolidated with loans or other indebtedness. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

Subsection (b) does not require that the consolidation or refinancing agreement provide for apportionment in its written terms. The purchase money character of agreements which are refinanced or consolidated is not destroyed by failure to provide for apportionment. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

Payments Must Be Applied as Stated in G.S. 25A-27(b). - As subsection (b) of this section reveals, the only statutory requirement governing the terms of refinancing or consolidation agreements is that the agreements must be in writing, dated, and signed by the parties. However, upon consolidation of two or more installment sale contracts, the seller must apply payments as set out in G.S. 25A-27(b). The purpose of such application is to permit a determination of the amount of the debt secured by each of the various security agreements. A similar application is required where a seller in a consumer credit sale makes a subsequent sale to a buyer and takes a security interest in goods previously purchased by the buyer from the seller. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

G.S. 25A-27 Controls in Case of Dispute. - In the event a dispute arises concerning application of payments, the statutory guidelines established by G.S. 25A-27 must be followed. Schewel Furn. Co. v. Goard, 26 Bankr. 316 (Bankr. M.D.N.C. 1982).

§ 25A-32. Rebates on prepayment.

Notwithstanding any provision in a consumer credit installment sale contract to the contrary, any buyer may satisfy the debt in full at any time before maturity, and in so satisfying such debt, shall receive a rebate, the amount of which shall be computed under the "rule of 78's," as follows:

"The amount of such rebate shall represent as great a proportion of the finance charge (less a prepayment charge of ten percent (10%) of the unpaid balance, not to exceed twenty-five dollars ($25.00)) as the sum of the periodical time balances after the date of prepayment in full bears to the sum of all the periodical time balances under the schedule of payments in the original contract." No rebate is required if the amount thereof is less than one dollar ($1.00).

If the prepayment is made otherwise than on the due date of an installment, it shall be deemed to have been made on the installment due date nearest in time to the actual date of payment.

If a seller obtains a judgment on a debt arising out of a consumer credit installment sale or the seller repossesses the collateral securing the debt, the seller shall credit the buyer with a rebate as if the payment in full had been made on the date the judgment was obtained or 15 days after the repossession occurred. If the seller obtains a judgment and repossesses the collateral, the seller shall credit the buyer with a rebate as if payment in full had been made on the date of the judgment or 15 days after the repossession, whichever occurs earlier.

History

(1971, c. 796, s. 1.)

§ 25A-32.1. Unearned finance charge credits on prepayment of loans secured by real property and mobile home loans.

Notwithstanding any statutory or contractual provision to the contrary, in a consumer credit installment sale contract with an amount financed of five thousand dollars ($5000.00) or more secured by real estate or by a residential manufactured home as defined in G.S. 143-145(7), any buyer may satisfy the debt in full at any time before maturity, and in so satisfying the debt, shall be credited with all unearned finance charges as computed on the simple interest or actuarial method.
If a seller obtains a judgment on a debt arising out of a consumer credit installment sale described in subsection (a) of this section, or if the seller forecloses or repossesses the collateral securing the debt, the seller shall credit the buyer with all unearned finance charges as computed on the simple interest or actuarial method as if the payment in full had been made on the date the judgment was obtained or 15 days after the foreclosure or repossession occurred, whichever is earlier. If the seller obtains a judgment and repossesses the collateral, the seller shall credit the buyer with all unearned finance charges as if payment in full had been made on the date of the judgment or 15 days after the repossession, whichever occurs earlier.

History

(1991, c. 602, s. 2.)

§ 25A-33. Terms of payments.

A consumer credit installment sale contract shall provide for complete payment of all charges due under the contract, including the amount financed, the finance charge, and additional insurance charges, if any, within a period from the time of the sale of

Forty-two months, if the amount financed is less than one thousand five hundred dollars ($1,500), or
Sixty-four months, if the amount financed is one thousand five hundred dollars ($1,500) or greater, but less than two thousand five hundred dollars ($2,500), or
One hundred and twenty-two months, if the amount financed is two thousand five hundred dollars ($2,500) or greater, but less than five thousand dollars ($5,000), or
One hundred and eighty-two months, if the amount financed is five thousand dollars ($5,000) or greater, but less than ten thousand dollars ($10,000), or
As the contract provides, if the amount financed is ten thousand dollars ($10,000) or greater.

The provisions of this section shall not apply to a consumer credit installment sale contract executed in connection with any financing which is insured under regulations of the Federal Housing Administration or the Veterans Administration.

History

(1971, c. 796, s. 1; 1973, c. 1446, s. 3.)

CASE NOTES

Cited in Richardson v. Bank of Am., N.A., 182 N.C. App. 531, 643 S.E.2d 410 (2007).

§ 25A-34. Balloon payments.

With respect to a consumer credit sale, other than one pursuant to a revolving charge account, no scheduled payment may be more than ten percent (10%) larger than the average of earlier scheduled payments, except that the final payment may be twenty-five percent (25%) larger than the average of earlier scheduled payments. This section does not apply when the payment schedule is adjusted to the seasonal or irregular income of the buyer. This section does not apply to the sale of a motorcycle as defined in G.S. 20-4.01(27) with a purchase price of seven thousand five hundred dollars ($7,500) or more.

History

(1971, c. 796, s. 1; 2018-114, s. 5(a).)

Editor's Note. - Session Laws 2018-114, s. 5(b), made the amendment of this section by Session Laws 2018-114, s. 5(a), effective December 1, 2018, and applicable to contracts entered into on or after that date.

Sessions Laws 2018-114, s. 29, is a severability clause.

Effect of Amendments. - Session Laws 2018-114, s. 5(a), added "larger than the average of earlier scheduled payments" in the first sentence; added the last sentence; and made stylistic changes in the first and second sentences. For effective date and applicability, see editor's note.

§ 25A-35. Statement of account.

One time during each 12-month period following execution of a consumer credit installment sale contract and when the buyer repays the debt early, the buyer shall be entitled upon request and without charge to a statement of account from the seller. The statement of account shall contain the following information identified as such in the statement:
1. The itemized amounts paid by or on behalf of the buyer to the date of the statement of account, except that upon early termination of the contract by prepayment or otherwise, the statement shall include itemized charges for expenses of repossession, storage and legal expenses;
2. The itemized amounts, if any, which have become due but remain unpaid, including any charges for defaults, expenses of repossession and deferral charges;
3. The number of installment payments and the dollar amount of each installment not due but still to be paid and the remaining period the contract is to run.
The buyer may request and shall be entitled to additional statements of account but for such additional statements the seller may impose a charge of one dollar ($1.00).
If the buyer requests information for income tax purposes as to the amount of the finance charges, the seller shall provide such information within 30 days without charge but only once in each calendar year.

History

(1971, c. 796, s. 1.)

§ 25A-36. Certificates of insurance and rebates.

Within 45 days following the purchase of insurance by the buyer from or through the seller, the seller shall deliver, send or cause to be sent to the buyer a policy or policies of such insurance or a certificate or certificates thereof. If such insurance is cancelled, or the premium adjusted, any rebate received by the seller shall be promptly applied to the purchase of other similar insurance, credited to the buyer's account, or rebated to the buyer. Unless otherwise required by law or the provisions of the policy, rebates of cancelled insurance shall be computed under the rule of 78's, without the deduction of a prepayment charge.
In those cases where the insurance premium is added in the contract, and the buyer did not actually pay the premium, the return premium plus unearned finance charge on the amount of returned premium (at the same rate as used in the contract) shall be credited to the unpaid balance of the contract. If the required insurance premium is adjusted upward by the insurance company or is added in accordance with the contract, the buyer, after 10 days' notice,
1. May pay the additional premium, or
2. Have the additional premium plus finance charge (at the same rate as used in the contract) added to the unpaid balance and spread equally over the remaining installments unpaid, provided, the seller may require a buyer who wishes to finance such additional premium to be financed by the seller in accordance with North Carolina insurance regulations.

History

(1971, c. 796, s. 1; 1977, c. 650.)

§ 25A-37. Referral sales.

The advertisement for sale or the actual sale of any goods or services (whether or not a consumer credit sale) at a price or with a rebate or payment or other consideration to the purchaser that is contingent upon the procurement of prospective customers provided by the purchaser, or the procurement of sales to persons suggested by the purchaser, is declared to be unlawful. Any obligation of a buyer arising under such a sale shall be void and a nullity and a buyer shall be entitled to recover from the seller any consideration paid to the seller upon tender to the seller of any tangible consumer goods made the basis of the sale.

History

(1971, c. 796, s. 1.)

CASE NOTES

Referral Sale. - In essence, a referral sale is a transaction in which a person is induced to purchase goods or services upon the representation that the purchaser can reduce or recover the purchase price or earn a commission by referring other prospective buyers to the seller for similar purchases. Chapel Hill Spa Health Club, Inc. v. Goodman, 90 N.C. App. 198, 368 S.E.2d 60 (1988).

Referral Sales Condemned. - In recognition of the vast potential for deception and exploitation of the public inherent in referral sales and in furtherance of the vital state interest in protecting citizens from fraud, our legislature, by enacting this section, has condemned all referral sales contracts, declaring them both unlawful and unenforceable. Chapel Hill Spa Health Club, Inc. v. Goodman, 90 N.C. App. 198, 368 S.E.2d 60 (1988).

Fact that contingency in referral contract related to price of renewal rather than original membership was of little significance, since in either circumstance the promise of something for nothing would serve as the incentive to make a purchase. Chapel Hill Spa Health Club, Inc. v. Goodman, 90 N.C. App. 198, 368 S.E.2d 60 (1988).

Where spa represented to purchaser, in effect, that if she purchased an initial membership, she could then obtain an additional year or years of membership free by referring an adequate number of prospects to the spa, this transaction clearly constituted a sale of services with other consideration to the purchaser that is contingent upon the procurement of prospective customers provided by the purchaser. Thus, the contract between purchaser and the spa constituted a referral sale, in violation of this section, and was void and unenforceable. Chapel Hill Spa Health Club, Inc. v. Goodman, 90 N.C. App. 198, 368 S.E.2d 60 (1988).

Cited in State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802 (1972).

§ 25A-38. "Home-solicitation sale" defined.

"Home-solicitation sale" means a consumer credit sale of goods or services in which the seller or a person acting for him engages in a personal solicitation of the sale at a residence of the buyer and the buyer's agreement or offer to purchase is there given to the seller or a person acting for him. It does not include

A sale made to a buyer who has previously engaged in a similar business transaction with the seller;
A sale made pursuant to a preexisting revolving charge account;
A sale made pursuant to negotiations between the parties on the premises of a business establishment at a fixed location where such goods or services are offered or exhibited for sale;
A sale which is regulated by the provisions of Section 226.9 of Regulation Z promulgated pursuant to Section 105 of the Consumer Credit Protection Act; or
Sales of personal wearing apparel, motor vehicles defined in G.S. 20-286(10), farm equipment and goods and services to be utilized within 10 days in connection with funeral services.

History

(1971, c. 796, s. 1; 1973, c. 672.)

§ 25A-39. Buyer's right to cancel.

Except as provided in subsection (e) of this section, in addition to any right otherwise to revoke an offer, the buyer has the right to cancel a home-solicitation sale until midnight of the third business day after the day on which the buyer signs an agreement or offer to purchase which complies with G.S. 25A-40, or which complies with the requirements of the Federal Trade Commission Trade Regulation Rule Concerning a Cooling-Off Period for Door-to-Door Sales.
Cancellation occurs when the buyer gives written notice of cancellation to the seller at the address stated in the agreement or offer to purchase.
Notice of cancellation, if given by mail, is given when it is deposited in the United States mail properly addressed and postage prepaid.
Unless the seller complies with G.S. 25A-40(b), notice of cancellation given by the buyer need not take a particular form and is sufficient if it indicates by any form of written expression the intention of the buyer not to be bound by the home-solicitation sale.
The buyer may not cancel a home-solicitation sale if the buyer requests the seller in a separate writing to provide goods or services without delay because of an urgency or an emergency, and
1. The seller in good faith makes a substantial beginning of performance of the contract before the buyer gives notification of cancellation,
2. In the case of goods, the goods cannot be returned to the seller in substantially as good condition as when received by the buyer, and
3. Unless the buyer returns the goods, if any, to the seller at his expense.
A buyer, who has not received delivery of the goods and services from the seller in a home-solicitation sale within 30 days following the execution of the contract (and such delay is the fault of the seller), shall have the right at any time thereafter before acceptance of the goods and services to rescind the contract and to receive a refund of all payments made and to a return of all goods traded in to the seller on account of or in contemplation of such contract, or if the goods traded in cannot or are not returned to the buyer within 10 days after cancellation, the buyer may elect to recover an amount equal to the trade-in allowance stated in the contract. By written agreement, the buyer may agree to a later time for the delivery of goods and services.

History

(1971, c. 796, s. 1; 1975, c. 805, s. 1.)

Legal Periodicals. - For survey of North Carolina construction law, with particular reference to unfair or deceptive acts or practices, see 21 Wake Forest L. Rev. 633 (1986).

CASE NOTES

Unfair and Deceptive Act. - Failure to comply with a Federal Trade Commission regulation, 16 C.F.R. 429.1(e), by failing to orally explain to purchasers their rights to cancel at the time the agreement was signed, coupled with defective notice of cancellation, which was incomplete and unattached to the contract in violation of G.S. 25A-40(b) and 16 C.F.R. 429.1(b), constituted an unfair and deceptive act in violation of G.S. 75-1.1. Eastern Roofing & Aluminum Co. v. Brock, 70 N.C. App. 431, 320 S.E.2d 22 (1984).

§ 25A-40. Form of agreement or offer; statement of buyer's rights.

In a home-solicitation sale the seller must present to the buyer and obtain his signature to a fully completed written agreement or offer to purchase which is in the same language as that principally used in the oral sales presentation and which designates as the date of the transaction the date on which the buyer actually signs and which contains the name and address of the seller, and which contains in immediate proximity to the space reserved for the signature of the buyer in bold face type of a minimum size of 10 points, a statement in substantially the following form:
The seller must, in addition to furnishing the buyer with a copy of the contract or offer to purchase, furnish to the buyer at the time he signs the home-solicitation sale contract or otherwise agrees to buy consumer goods or services from the seller, a completed form in duplicate, captioned "Notice of Cancellation," which shall be attached to the contract and easily detachable, and which shall contain in 10 point bold face type the following information and statements in the same language as that used in the contract:

"You, the buyer, may cancel this transaction at any time prior to midnight of the third business day after the date of this transaction. See the attached Notice of Cancellation form for an explanation of this right."

"Notice of Cancellation

(enter date of transaction) __________________________________ (date) You may cancel this transaction, without any penalty or obligation, within three business days from the above date. If you cancel, any property traded in, and payments made by you under the contract or sale, and any negotiable instrument executed by you will be returned within 10 business days following receipt by the seller of your cancellation notice, and any security interest arising out of the transaction will be canceled. If you cancel, you must make available to the seller at your residence, in substantially as good condition as when received, any goods delivered to you under this contract or sale; or you may, if you wish, comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk. If you do make the goods available to the seller and the seller does not pick them up within 20 days of the date of your notice of cancellation, you may retain or dispose of the goods without any further obligation. If you fail to make the goods available to the seller, or if you agree to return the goods to the seller and fail to do so, then you remain liable for performance of all obligations under the contract. To cancel this transaction, mail or deliver a signed and dated copy of this cancellation notice or any other written notice, or send a telegram to ____________________________________________________, (name of seller) at ____________________________________________________________, (address of seller's place of business) not later than midnight of ______________________________________. (date) I hereby cancel this transaction. ________________________________ (date) __________________________________ (Buyer's Signature)"

History

(1971, c. 796, s. 1; 1975, c. 805, s. 2.)

Legal Periodicals. - For survey of North Carolina construction law, with particular reference to unfair or deceptive acts or practices, see 21 Wake Forest L. Rev. 633 (1986).

CASE NOTES

§ 25A-41. Restoration of down payment; retention of goods.

Except as provided in this section, within 10 business days after a home-solicitation sale has been canceled or an offer to purchase revoked in accordance with G.S. 25A-40, the seller must tender to the buyer any payments made by the buyer and any note or other evidence of indebtedness.
If the down payment includes goods traded in, the goods must be tendered at the buyer's residence in substantially as good condition as when received by the seller. If the seller fails to tender the goods as provided by this section, the buyer may elect to recover an amount equal to the trade-in allowance stated in the agreement.
Repealed by Session Laws 1975, c. 805, s. 3.
Until the seller has complied with the obligations imposed by this section, the buyer may retain possession of goods delivered to him by the seller and has a lien on the goods in his possession or control for any recovery to which he is entitled.

History

(1971, c. 796, s. 1; 1975, c. 805, s. 3.)

§ 25A-42. Duties as to care and return of goods; no compensation for services prior to cancellation.

Except as provided by the provisions on retention of goods by the buyer (G.S. 25A-41(d)), within a reasonable time after a home-solicitation sale has been canceled, the buyer must make available to the seller at the buyer's residence in substantially as good condition as received, any goods delivered under the contract or sale, or in the alternative, the buyer may comply with the instructions of the seller regarding the return shipment of the goods at the seller's expense and risk. The seller shall within 10 business days of receipt of the buyer's notice of cancellation notify the buyer whether the seller intends to repossess or to abandon any shipped or delivered goods. If the buyer makes the goods available to the seller and the seller does not pick them up within 20 days of the date of the notice of cancellation, the buyer may retain or dispose of the goods without any further obligation. If the buyer fails to make the goods available to the seller, or agrees to return the goods to the seller and fails to do so, then the buyer shall remain liable for performance of all obligations under the contract.
The buyer has the duty of a bailee to take reasonable care of the goods in his possession before cancellation or revocation and for a reasonable time thereafter, during which time the goods are otherwise at the seller's risk.
If the seller has performed any services pursuant to a home-solicitation sale prior to its cancellation, the seller is entitled to no compensation therefor.
The seller shall not negotiate, transfer, sell, or assign any note, contract, or other evidence of indebtedness arising out of a home-solicitation sale to a finance company or other third party prior to midnight of the fifth business day following the day the contract was signed or the goods or services were purchased.

History

(1971, c. 796, s. 1; 1975, c. 805, s. 4.)

§ 25A-43. Unconscionability.

With respect to a consumer credit sale, if the court finds the agreement or any clause of the agreement to have been unconscionable at the time it was made, the court may refuse to enforce the agreement, or it may enforce the remainder of the agreement without the unconscionable clause, or it may so limit the application of any unconscionable clause as to avoid any unconscionable result.
If it is claimed or appears to the court that the agreement or any clause thereof may be unconscionable, all parties shall be afforded a reasonable opportunity to present evidence as to its setting, purpose and effect to aid the court in making its determination.
As used in this section, "unconscionable" shall mean totally unreasonable under all of the circumstances.

History

(1971, c. 796, s. 1.)

CASE NOTES

Cited in Billings v. Joseph Harris Co., 27 N.C. App. 689, 220 S.E.2d 361 (1975); Brenner v. Little Red Sch. House, Ltd., 302 N.C. 207, 274 S.E.2d 206 (1981); Sears, Roebuck & Co. v. Vandeusen, 155 Bankr. 358 (E.D.N.C. 1993).

§ 25A-44. Remedies and penalties.

In addition to remedies hereinbefore provided, the following remedies shall apply to consumer credit sales:

In the event that a consumer credit sale contract requires the payment of a finance charge not more than two times in excess of that permitted by this Chapter, the seller or an assignee of the seller shall not be permitted to recover any finance charge under that contract and, in addition, the seller shall be liable to the buyer in an amount that is two times the amount of any finance charge that has been received by the seller, plus reasonable attorney's fees incurred by the buyer as determined by the court. However, if the requirement of an excess charge results from an accidental or good faith error, the seller shall be liable only for the amount by which the finance charge exceeds the rates permitted by this Chapter.
In the event that a consumer credit sale contract requires the payment of a finance charge more than two times that permitted by this Chapter, the contract shall be void. The buyer may, at his option, retain without any liability any goods delivered under such a contract and the seller or an assignee of the rights shall not be entitled to recover anything under such contract.
In the event the seller or an assignee of the seller (i) shall fail to make any rebate required by G.S. 25A-32 or G.S. 25A-36, (ii) shall charge and receive fees or charges in excess of those specifically authorized by this Chapter, or (iii) shall charge and receive sums not authorized by this Chapter, the buyer shall be entitled to demand and receive the rebate due and excessive or unauthorized charges. Ten days after receiving written request therefor, the seller shall be liable to the buyer for an amount equal to three times the sum of any rebate due and all improper charges which have not been rebated or refunded within the 10-day period.
The knowing and willful violation of any provision of this Chapter shall constitute an unfair trade practice under G.S. 75-1.1.
Any buyer injured by any violation of G.S. 25A-2(e) may bring an action for recovery of damages, including reasonable attorney's fees.

History

(1971, c. 796, s. 1; 1983, c. 686, s. 4.)

CASE NOTES

Availability of Remedies. - In order to create a security interest in previously purchased property, the seller must provide for apportioning payments in the charge account contract. The failure to do so means that no security interest comes into existence and the remedies for a violation of this Act contained in this section do not apply. Sears, Roebuck & Co. v. Vandeusen, 155 Bankr. 358 (E.D.N.C. 1993).

Applied in Simmons v. C.W. Myers Trading Post, Inc., 307 N.C. 122, 296 S.E.2d 294 (1982); Steed v. First Union Nat'l Bank, 58 N.C. App. 189, 293 S.E.2d 217 (1982).

Cited in State ex rel. Morgan v. Dare to Be Great, Inc., 15 N.C. App. 275, 189 S.E.2d 802 (1972); Anderson v. Pamlico Chem. Co., 470 F. Supp. 12 (E.D.N.C. 1977); Marshall v. Miller, 47 N.C. App. 530, 268 S.E.2d 97 (1980); Simmons v. C.W. Myers Trading Post, Inc., 68 N.C. App. 511, 315 S.E.2d 75 (1984).

§ 25A-45. Conflict with Consumer Credit Protection Act.

In all cases of irreconcilable conflict between the provisions of this Chapter and the provisions of the Consumer Credit Protection Act, the provisions of the Consumer Credit Protection Act shall control.

History

(1971, c. 796, s. 3.)

CASE NOTES

Cited in State ex rel. Edmisten v. J.C. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977).