Landlord/Tenant – Commercial Lease – Assumption – Banks & Banking – Receivership

Southeastern Real Estate & Discount Co. v. Bank of North Carolina (Lawyers Weekly No. 012-066-17, 6 pp.) (Ann Marie Calabria, J.)  Appealed from Transylvania County Superior Court (Yvonne Mims Evans, J.) N.C. App. Unpub.

Holding: The complaint alleges that, after plaintiffs’ first tenant went into receivership, defendant assumed the defunct tenant’s lease and paid rent “intending to be bound to the lease” until defendant closed its branch at that location and then breached the lease by failing to pay rent. As such, the complaint states a claim for breach of the lease.

We reverse the trial court’s grant of defendant’s motion to dismiss.

We also note that defendant’s statute of frauds defense is an affirmative defense and, as such, is not an appropriate basis for a motion to dismiss.