WACHOVIA MORTGAGE COMPANY v. AUTRY-BARKER-SPURRIER REAL ESTATE, INC.; KLUTTS REALTY AND CONSTRUCTION COMPANY, INC.; J. VAUGHN KLUTTS, JOY W. KLUTTS, RICHARD W. AUTRY, PATRICIA D. AUTRY, ROBERT N. SPURRIER, BLANDINA W. SPURRIER and JOHN J. BARKER, 39 N.C. App. 1

Summary

The construction corporation alleged in its third defense the mortgage company breached its agreement to provide conventional loans to eventual purchasers of townhouse units at interest rates competitive to rate charged by other mortgage lenders. The construction corporation, in its counterclaim, alleged damages caused by the mortgage company's breach. The litigants argued the trial court erred in granting summary judgment with respect to their fifth, sixth, and seventh defenses, which alleged the mortgage company fraudulently inserted into the guaranty agreement that the litigants guaranteed the debts and obligations of the corporate defendants now existing or hereafter arising. The litigants alleged the parties agreed the guaranty agreement would apply prospectively only. The court affirmed, holding that: (1) as to the guaranty agreement, the litigants, in opposing the summary judgment motion, could not create a fact issue by filing an affidavit the day before the hearing on the ...