An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.



                               NO. COA13-1073
                       NORTH CAROLINA COURT OF APPEALS
                                Filed:    6 May 2014
CRAIG HENSEL,
     Plaintiff

                                                    Guilford County
      v.
                                                    No. 13 CVS 4734

XEROX BUSINESS SERVICES, LLC, d/b/a
ACS, a XEROX COMPANY, d/b/a ACS, d/b/a
ACS@XEROX, LLC, d/b/a AFFILIATED
COMPUTER SERVICES, LLC, and d/b/a
AFFILIATED COMPUTER SERVICES, INC.,
     Defendant


      Appeal by      plaintiff from order          entered 18      July 2013      by

Judge Lindsay R. Davis, Jr., in Guilford County Superior Court.

Heard in the Court of Appeals 4 February 2014.

      Hensel Law, PLLC, by Craig Hensel, pro se.

      Carruthers      &    Roth,    P.A.,     by   Rachel     S.    Decker,     for
      Defendant.

      ERVIN, Judge.

      Plaintiff Craig Hensel appeals from an order granting a

motion for judgment on the pleadings filed by Defendant Xerox

Business Services, LLC, d/b/a ACS, a Xerox Company, d/b/a ACS,

d/b/a ACS@Xerox, LLC, d/b/a Affiliated Computer Services, LLC,

and   d/b/a    Affiliated      Computer     Services,      Inc.       On   appeal,

Plaintiff argues that the trial court erred by entering judgment
                                             -2-
on the pleadings in favor of Defendant on the grounds that the

pleadings revealed the existence of a number of factual issues

sufficient    to       preclude      the    entry      of     judgment      in    Defendant’s

favor;    that     Plaintiff         had     sufficiently           pled    claims       for    a

declaration that the parties had entered into an accord and

satisfaction and breach of contract; and that nothing in the

parties’ pleadings supported a determination that Plaintiff had

breached the duty of good faith and fair dealing.                            After careful

consideration      of       Defendant’s      challenges         to    the    trial    court’s

order in light of the record and the applicable law, we conclude

that the trial court’s order should be affirmed.

                               I. Factual Background

                                A. Substantive Facts

       Plaintiff obtained several student loans in a total face

amount in excess of $90,000.00 from Access Group, Inc., which

are    serviced    by       Defendant.           On    or   about    30     November       2012,

Defendant sent Plaintiff two bills for late fees in the total

amount of $68.28.            On 9 December 2012, Plaintiff sent a letter,

accompanied       by    a    check       drawn    in    the    amount       of    $68.28,      to

Defendant at the address shown on the face of the invoice in

which he asserted that Defendant had unlawfully assessed late

fees     against       him    in     violation         of   the      Federal      Fair     Debt

Collection       Practices         Act     and    that      Defendant’s          conduct       had
                                         -3-
injuriously    caused       a   delay    in    the    closing    of     a    residential

purchase that Plaintiff was in the process of making, resulting

in the necessity for Plaintiff to pay a daily fee in order to

preserve his right to complete the transaction.                         As a result,

Plaintiff proposed that his dispute with Defendant be resolved

based on an agreement under which Defendant would, in return for

the transmission of the enclosed $68.28 check and his commitment

to refrain from instituting civil litigation against Defendant,

forgive the balance due under all of his outstanding loans held

by, serviced by, or originating from Defendant; indemnify him

from   any   claims    resulting        from    these    loans;    agree         that   any

future litigation arising from the original loan agreements or

any    subsequent     modifications           would    take     place       in   Guilford

County; and agree to refrain from taking any action that would

negatively    impact    Plaintiff’s           credit    rating.         According        to

Plaintiff, Defendant could accept his offer to enter into this

agreement by “silence or acceptance of the enclosed payment,”

with the check in question having been tendered “exclusively for

the settlement of the matter using the above terms.”                                On 18

December     2012,    the       check    which       accompanied      Plaintiff’s         9

December 2012 letter was deposited into an account held by ACS

Education Services.
                                               -4-
     On or about 31 December 2012, Defendant sent Plaintiff a

statement in which the $68.28 check that accompanied Plaintiff’s

letter had been applied to the balances of Plaintiff’s accounts,

which were otherwise unaltered.                           Although Plaintiff paid the

amount requested in the December statement on 18 January 2012,

he   included          a    letter     with        his    payment         indicating      that   his

actions in paying the 31 December 2012 invoice should not be

treated    as    an        acknowledgement          that        he   owed    anything      on    the

underlying notes and represented, instead, an action taken to

maintain his credit score.

     On 17 February 2013, Defendant sent another statement that

failed to reflect Plaintiff’s January payment and indicated that

Plaintiff’s account had become delinquent.                                On 24 February 2013,

Plaintiff       corresponded           with        Defendant         for     the     purpose      of

contesting       the       existence      of       any    debt       on    the    basis    of    the

“Contract”       set       out    in   his     9    December         2012    letter.        On    28

February     2013,          Defendant        transmitted             another       statement      to

Plaintiff       that       reflected     the       making       of    the    18    January       2013

payment and reiterated Defendant’s contention that Plaintiff’s

account was delinquent.                After Plaintiff contacted Defendant by

phone on a number of occasions in March 2013 for the purpose of

contending       that       his    debt      had         been    forgiven         based    on     the

arrangement proposed in his 9 December 2012 letter, Defendant
                                       -5-
returned the $68.28 payment that Plaintiff had made to Defendant

in   connection     with    the   transmission     of   the   9   December    2012

letter.

                              B. Procedural History

      On 9 April 2013, Plaintiff filed a complaint in which he

sought    a     declaration    that   the    parties    had   entered   into    a

contract and alleged that Defendant had breached the contract in

question.       On 5 June 2013, Defendant filed an answer in which it

denied    the    material     allegations    of   Plaintiff’s     complaint    and

asserted a number of affirmative defenses, including lack of

consideration, breach of the covenant of good faith and fair

dealing, non-compliance with the provisions of the notes which

underlay Plaintiff’s claims, failure to mitigate damages, and

failure to provide proper notice.             On the same date, Defendant

filed a motion seeking the entry of judgment on the pleadings in

its favor.        On 18 July 2013, the trial court entered an order

granting Defendant’s motion.          Plaintiff noted an appeal to this

Court from the trial court’s order.

                      II. Substantive Legal Analysis

                              A. Standard of Review

      “A motion for judgment on the pleadings is authorized by

Rule 12(c) of the North Carolina Rules of Civil Procedure.”

Garrett v. Winfree, 120 N.C. App. 689, 691, 463 S.E.2d 411, 413
                                           -6-
(1995);    N.C.    Gen.    Stat.       §   1A-1,     Rule    12(c).         “The       rule’s

function is to dispose of baseless claims or defenses when the

formal    pleadings      reveal       their   lack    of    merit.”         Ragsdale       v.

Kennedy,    286    N.C.     130,       137,   209     S.E.2d     494,       499    (1974).

“Judgment on the pleadings is properly entered only if ‘all the

material    allegations          of   fact    are     admitted[,]       .    .     .     only

questions of law remain’ and no question of fact is left for

jury    determination.”           N.C.     Concrete      Finishers      v.    N.C.      Farm

Bureau,    202    N.C.    App.    334,     336,    688     S.E.2d   534,     535       (2010)

(quoting Ragsdale, 286 N.C. at 137, 209 S.E.2d at 499).

            “In deciding [a motion for judgment on the
            pleadings], the trial court looks solely to
            the pleadings.    The trial court can only
            consider    facts   properly   pleaded   and
            documents referred to or attached to the
            pleadings.”   “This Court reviews de novo a
            trial court’s ruling on motions for judgment
            on the pleadings. Under a de novo standard
            of review, this Court considers the matter
            anew and freely substitutes its own judgment
            for that of the trial court.”

N.C. Concrete Finishers, 202 N.C. App. at 336-37, 688 S.E.2d at

535 (quoting Reese v. Mecklenburg County, 200 N.C. App. 491,

497, 685 S.E.2d 34, 37-38 (2009), disc. review denied, 364 N.C.

242, 698 S.E.2d 653 (2010)) (internal citations omitted).                                  We

will now utilize the applicable standard of review to evaluate

the    validity    of    Plaintiff’s       challenges       to   the    trial      court’s

order.
                                                -7-
                      B. Validity of the Trial Court’s Order

     The essential gist of Plaintiff’s challenge to the trial

court’s decision to grant judgment on the pleadings in favor of

Defendant        is    that    he     had     successfully        asserted     a     claim    for

breach      of        contract        against        Defendant         arising       from     the

transmission of the              9 December 2012            letter to Defendant, in

which he proposed a settlement of their alleged dispute, and the

subsequent cashing of the accompanying check, and that the trial

court erred by reaching a contrary conclusion.                                   In essence,

Plaintiff claims that the 9 December 2012 letter constituted an

offer to form a contract between Defendant and himself, which

Defendant accepted by cashing the accompanying check, and that

Defendant’s           actions       in      subsequently        transmitting          invoices

seeking     payment       of        amounts     inconsistent           with    the    parties’

alleged     agreement         constituted        a    breach      of   the    December       2012

“contract.”           Although we agree that Plaintiff did, in fact,

sufficiently allege the “facts” upon which he relies in support

of   this    argument,           we      do    not    believe      that       those    “facts”

adequately       support       the     assertion       of   any    contract-based           claim

against Defendant.1

     1
      Admittedly, Plaintiff asserts claims for both the entry of
a declaratory judgment to the effect that the parties had
entered into a valid contract and for breach of contract in his
complaint. However, both claims rest upon a contention that the
parties formed a valid contract as the result of the
                                        -8-
    “It is well established that a valid contract comes into

existence only where the parties involved mutually assent to the

same agreement.”        Elliott v. Duke University, Inc., 66 N.C> App.

590, 595, 311 S.E.2d 632, 636, disc. review denied, 311 N.C.

754, 321 S.E.2d 132 (1984).              If any portion of the proposed

terms   is    not    settled,   there   is    no   agreement.”   Goeckel     v.

Stokely, 236 N.C. 604, 607, 73 S.E.2d 618, 620 (1952) (citations

omitted).          “Where one party simply believes that a contract

exists, but there is no meeting of the minds, the individual

seeking to enforce the obligation upon a contract theory is

without a remedy.”        Elliott, 66 N.C. App. at 595, 311 S.E.2d at

636 (citing Brown v. Williams, 196 N.C. 247, 250, 145 S.E. 233,

234 (1928)).

    As       the    parties   have   acknowledged,    an   agreement   of   the

nature that Plaintiff alleges to have existed in this instance

is typically referred to as an accord and satisfaction.

              An “accord” is an agreement whereby one of
              the parties undertakes to give or perform,
              and the other to accept, in satisfaction of
              a claim, liquidated or in dispute, and
              arising  either   from  contract  or  tort,
              something other than or different from what
              he is, or considered himself entitled to;
              and a “satisfaction” is the execution or

transmission of the 9 December 2012 letter and the cashing of
the accompanying check.     As a result, a conclusion that
Plaintiff had not alleged the existence of a valid contract
would suffice to defeat both of the claims asserted in his
complaint.
                                       -9-
          performance of such agreement.

Sharpe v. Nationwide Mut. Fire Ins. Co., 62 N.C. App. 564, 565,

302 S.E.2d 893, 894, (quoting Allgood v. Wilmington Savings &

Trust Co., 242 N.C. 506, 515, 88 S.E.2d 825, 830-31 (1955)),

cert. denied, 309 N.C. 823, 310 S.E.2d 353 (1983).                   However,

          The word “agreement” implies the parties are
          of one mind—all have a common understanding
          of the rights and obligations of the others—
          there has been a meeting of the minds. . . .
          Agreements are reached by an offer by one
          party and an acceptance by the other. This
          is true even though the legal effect of the
          acceptance may not be understood.

Prentzas v. Prentzas, 260 N.C. 101, 103-04, 131 S.E.2d 678, 680-

81 (1963) (citations omitted).              For that reason, “establishing

an accord and satisfaction . . . as a matter of law requires

evidence that permits no reasonable inference to the contrary

and that shows the ‘unequivocal’ intent of one party to make and

the other party to accept a lesser payment in satisfaction . . .

of a larger claim.”        Moore v. Frazier, 63 N.C. App. 476, 478-79,

305 S.E.2d 562, 564 (1983) (citing Allgood, 242 N.C. at 515, 88

S.E.2d   at    831).       “Although        the    existence    of    accord    and

satisfaction is generally a question of fact, ‘where the only

reasonable inference is existence or non-existence, accord and

satisfaction    is     a   question    of    law    and   may   be    adjudicated

[summarily] when the essential facts are made clear of record.’”

Zanone v. RJR Nabisco, Inc., 120 N.C. App. 768, 771, 463 S.E.2d
                                               -10-
584, 587 (1995) (quoting Construction Co. v. Coan, 30 N.C. App.

731, 737, 228 S.E.2d 497, 501, disc. review denied, 291 N.C.

323, 230 S.E.2d 676 (1976)), disc. review denied, 342 N.C. 666,

467 S.E.2d 738 (1996).

          “[A] claim is not discharged [by accord and satisfaction by

use of instrument] when the claimant, if an organization, proves

that          (i)   within     a     reasonable      time    before      the   tender,   the

claimant sent a conspicuous statement to the person against whom

the claim is asserted that communications concerning disputed

debts, including an instrument tendered as full satisfaction of

a debt, are to be sent to a designated person, office, or place,

and (ii) the instrument or accompanying communication was not

received by that designated person, office, or place.”                                   N.C.

Gen. Stat. § 25-3-311(c).                   According to Section L, Subsection 2,

of the Application and Loan Agreements under which Plaintiff

procured            the    student     loan     debt    at       issue   in    this   case,2

“[Borrower] will not send [Lender] any partial payments marked

‘paid         in    full,’     ‘without     recourse’       or   with    similar   language

unless those payments are marked for ‘special handling’ and sent

to:           Access Group, P.O. Box 7400, Wilmington, DE 19803-0400.”

As    a       result      of   the   fact     that    Defendant     is    an   organization

          2
      As a result of the fact that these agreements were attached
to the pleadings, they are properly before us.
                                            -11-
entitled to take advantage of the protections afforded by N.C.

Gen.       Stat.    §   25-3-311(c)      and      the   fact     that   the    undisputed

information          contained      in      the     pleadings       establishes        that

Plaintiff sent the 9 December 2012 letter and the accompanying

check to an address other than that specified in the application

and loan agreement,3 the undisputed factual information contained

in   the     pleadings      establishes        that     Plaintiff’s     claim    to    have

entered into an accord and satisfaction with Defendant as a

result of the transmission of the 9 December 2012 letter and the

cashing of the accompanying check is barred by N.C. Gen. Stat. §

25-3-311(c).

       In an attempt to persuade us to reach a contrary result,

Plaintiff          argues    that     the      9      December     2012       letter    and

accompanying check clearly proposed the entry of a new contract;
       3
      As we have already noted, the 9 December 2012 letter and
accompanying check were sent to the address shown on the front
of the invoices that Plaintiff received from Defendant.
According to the invoices contained in the record that Plaintiff
received from Defendant around the relevant period of time,
“[a]ny correspondence other than payments should be sent to the
address listed on the back of this statement.”          Although
Plaintiff has contended in his brief that the address shown on
the back of the invoices in question was identical to the
address shown on the front of those documents, he has not
presented us with copies of the relevant documents or explained
why any information contained on the face of the invoices that
he received from Defendant supersedes the explicit provisions of
the application and loan agreements that evidence the underlying
debt at issue here, particularly given that the applications and
loan agreements specifically state in bold-faced type that “you
may change the terms of this agreement only by another written
agreement.”
                                              -12-
that   the    check       that    accompanied         the       9    December       2012       letter

stated      that     it     was     “exclusively            for        the       settlement          of

[Plaintiff’s         loans        and        potential          legal           action     against

Defendant];”        and    that,    although,        Defendant             applied       the    check

that accompanied the 9 December 2012 letter against the balance

owed   on    Plaintiff’s         account,       it   continued             to    send    Plaintiff

monthly     invoices       and    ultimately         refunded         $68.28       to    Plaintiff

upon learning of Plaintiff’s contention that the parties had

entered into a new agreement.                  Based upon these facts, Plaintiff

argues that “[t]here was no possibility that an observer opening

the letter could think that the enclosed check was for anything

other than the purpose of settling a claim using the terms of

the    letter.”       [PB14]            In   essence,       Plaintiff            appears       to    be

arguing      that    the    pleadings         support       a       determination         that      he

entered into an accord and satisfaction with Defendant that is

effective under the common law of contract.                                 Assuming, without

deciding, that the facts alleged in the pleadings, when taken in

the light most favorable to Plaintiff, do tend to show that the

parties      entered       into     an        agreement             that     would       otherwise

constitute an accord and satisfaction that was valid under the

common law, Plaintiff has not cited any authority to the effect

that   the    underlying         transaction         between         the     parties       did      not

involve a negotiable instrument subject to the provisions of
                                        -13-
N.C. Gen. Stat. § 25-3-311(c), and we have not identified any

such authority in the course of our own research.                  As a result,

given that Defendant was entitled to rely on the protections

afforded by N.C. Gen. Stat. § 25-3-311(c) and that there has

been       no   showing   that   Plaintiff     complied   with   that   statutory

provision in the course of his dealings with Defendant, we hold

that the pleadings, when taken in the light most favorable to

Plaintiff, do not tend to show that he has asserted a viable

claim      against   Defendant,     a   determination     that   necessitates   a

conclusion that the trial court correctly granted Defendant’s

motion for judgment on the pleadings.4

                                  III. Conclusion

       Thus, for the reasons set forth above, we conclude that

none of Plaintiff’s challenges to the trial court’s judgment

have merit.         As a result, the trial court’s judgment should be,

and hereby is, affirmed.

       AFFIRMED.

       Judges McGEE and STEELMAN concur.

       4
      Although the applications and loan agreements under which
Plaintiff procured the loans at issue in this case specifically
provide that disputes arising under those agreements are to be
governed by the laws of Ohio, the parties to this proceeding
have based their arguments before this Court on North Carolina,
rather than Ohio, law. As a result, our decision in this case
rests upon the law of this jurisdiction rather than that of
Ohio, about which we have received only limited information from
the parties.
                         -14-
Report per Rule 30(e).
