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Real Property – Mortgages – Early Pay Off – Breach of Contract – Deadline

The defendant-lender offered to accept 80 percent of the plaintiff-borrower’s loan balances on four lots if plaintiff paid off its loans by 15 October 2020, but the lender’s loan servicer sent plaintiff pay-off statements for the period of 15 to 30 October 2020. Defendant breached its contract with plaintiff when defendant refused to accept the pay-off funds that plaintiff wired to it on 19 October 2020.

We affirm summary judgment for plaintiff.

Defendant contends that it did not abandon the 15 October 2020 deadline by approving the payoff statements. Defendant refers to the 30 October 2020 deadline in the payoff statements as an “errant ‘good through’” statement. We disagree.

The record shows that, rather than being a mistake, the 30 October 2020 deadline in the payoff statements was in response to a specific request from plaintiff due to concerns about the timing of the loan that plaintiff was securing to be able to complete the early payoff of the four loans plaintiff had with defendant. A contract may be modified by subsequent conduct of the parties. Here, not only did an agent of defendant communicate acceptance to plaintiff of its need to modify the deadline for payment of plaintiff’s loans, but defendant also approved the subsequent revised payoff statements that had a new deadline of 30 October 2020.

If the inclusion of the 30 October 2020 deadline was a mistake, there is no evidence that it was a mutual mistake, nor one procured by fraud, imposition, undue influence or like oppressive circumstances. Accordingly, defendant’s unilateral mistake is not sufficient to avoid the contract.

Plaintiff properly accepted the offer set out in the payoff demands by tendering the amount specified therein via wire transfer on 19 October 2020, thereby completing the formation of the contract.

Defendant then breached the contract by returning plaintiff’s wired funds.

Defendant also violated G.S. § 45-36.9 when it failed to cancel the liens of the deeds of trust for the four paid-off loans. Plaintiff showed that all the requirements of G.S. §§ 45-36.5 and -36.9 were met, entitling plaintiff to statutory damages and attorney’s fees.


Velmont Enterprises, Inc. v. Path of Land Lending, LLC (Lawyers Weekly No. 012-438-22, 15 pp.) (Darren Jackson, J.) Appealed from Mecklenburg County Superior Court (George Bell, J.) Jeffrey Bunda for defendant; Kenneth Raynor for plaintiff. 2022-NCCOA-703

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