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Contract – Promissory Notes – Attorney’s Fees – Insufficient Notice – Sums ‘Made’

Where the plaintiff-creditor’s notice says that it will seek attorneys’ fees unless an amount “is made” within five days, rather than demanding that the amount be “paid,” plaintiff may not collect attorneys’ fees under G.S. § 6-21.2(5).

Defendant’s motion for summary judgment is granted on the issue of attorneys’ fees and on the issue of its payment of the principal and interest on the parties’ $50,000 and $100,000 promissory notes. Defendant’s motion is otherwise denied.

Defendant’s promissory notes in favor of plaintiff said that, upon default, plaintiff could seek attorneys’ fees. Plaintiff provided the five-day notice required by § 6-21.2(5) in the complaint. However, instructing that a sum be “made” within five days is nonsensical and fails to provide adequate notice that payment is required to avoid liability for attorneys’ fees.

Brown v. Onslow Bay Marine Group LLC (Lawyers Weekly No. 020-084-22, 16 pp.) (Michael Robinson, J.) Nicholas Ellis and Dylan Castellino for plaintiff; Andrew McVey and Stephen Bailey for defendant. 2022 NCBC 84

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