                          UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


EMPIRE FUNDING CORPORATION,             
               Claimant-Appellant,
                 v.
JAMES MERVIN ARMOR; PATRICIA
HOWARD ARMOR,                                    No. 99-1529
               Debtors-Appellees,
                and
RICHARD M. STEARNS,
                             Trustee.
                                        
            Appeal from the United States District Court
       for the Eastern District of North Carolina, at Raleigh.
                W. Earl Britt, Senior District Judge.
             (CA-98-932-5-BR-3, BK-98-00738-8-JRL)

                        Argued: April 4, 2000

                      Decided: October 20, 2000

      Before WIDENER and WILKINS, Circuit Judges, and
      Claude M. HILTON, Chief United States District Judge
               for the Eastern District of Virginia,
                      sitting by designation.



Affirmed by unpublished opinion. Chief Judge Hilton wrote the opin-
ion, in which Judge Widener joined. Judge Wilkins wrote a dissenting
opinion.
2                  EMPIRE FUNDING CORP. v. ARMOR

                            COUNSEL

ARGUED: Donald S. Higley, II, WARD & SMITH, P.A., Green-
ville, South Carolina, for Appellant. Paul Tracy Cleavenger, CLEA-
VENGER & CARRAWAY, P.L.L.C., Kinston, North Carolina, for
Appellees. ON BRIEF: Teresa DeLoatch Bryant, Albert Charles
Ellis, WARD & SMITH, P.A., Greenville, South Carolina, for Appel-
lant.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

HILTON, Chief District Judge:

   This matter comes before the court on Empire Funding Corpora-
tion’s appeal of the District Court’s Order of March 15, 1999. The
District Court affirmed the Bankruptcy Court’s decision allowing the
Armors’ Chapter 13 Plan to include a secured claim of Empire Fund-
ing and denying the Armors’ obligation to the secured claim.

   On May 13, 1994, James Mervin Armor and Patricia Howard
Armor ("the Armors") entered into a Retail Installment Contract, Note
& Disclosure Statement ("the contract") with Division Construction
Company ("Division") providing that in consideration of the debtors’
payment of $14,999.00, Division would construct a building for debt-
ors to use in connection with their pottery business. The Armors
secured the obligation by granting Division a Deed of Trust on certain
real property they owned. Division subcontracted with Mike Alphin,
doing business as A&A Construction Company ("Alphin"), to do the
actual construction of the building. After the completion of the con-
struction, Division assigned the contract and the deed of trust to
Empire. The completed building was structurally defective and failed
to comply with the North Carolina Building Code.
                   EMPIRE FUNDING CORP. v. ARMOR                     3

  On February 28, 1996, debtors filed suit against Empire, Division
and Alphin in the Superior Court for Lenoir County North Carolina.
The Armors’ claims against Division and Alphin included breach of
contract, breach of implied warranty, negligent construction and
unfair and deceptive trade practices. Against Empire, debtors alleged
breach of implied warranty, as Empire held the contract. Debtors
sought damages from all defendants for costs or repairs and the lost
profits. They also demanded "judgment against the Defendant Empire
Funding Corp. that the loan with said defendant be set aside."

   The Honorable Frank R. Brown conducted a bench trial and
entered judgment on April 16, 1997. That judgment stated: "Empire
did nothing to cause [the Armors’] damages." The judgment awarded
debtors $37,118.85 from Division and Alphin and stated that Empire
"shall pay nothing." The judgment did not speak to whether the loan
between Empire and the Armors would be set aside. The judgment
was not appealed.

   On February 6, 1998, the Armors filed a voluntary Chapter 13
bankruptcy petition with the United States District Court for the East-
ern District of North Carolina. On May 11, 1998, Empire filed with
the Armors’ Chapter 13 trustee, Richard M. Stearns ("trustee"), a
secured proof of claim for $16,023.36. On May 27, 1998, the trustee
filed a Notice of Requirement to Modify Plan ("Notice") in order to
allow for Empire’s claim. On June 3, 1998, the Armors objected to
the Notice and to Empire’s claim. On August 25, 1998, Judge Leon-
ard held a hearing on these issues and on October 8, 1998 issued an
order denying the Notice and granting the Armors’ objection to the
claim. This ruling was affirmed by the District Court’s Order of
March 15, 1999.

   The parties have stipulated to the validity of the contract entered
into between the Armors and Division and its terms. The contract
contains the following language that the Federal Trade Commission,
16 C.F.R. § 433.2, requires to be in all consumer credit contracts:

    Notice. Any holder of this consumer credit contract is sub-
    ject to all claims and defenses which the debtor could assert
    against the seller of the goods or services obtained pursuant
    hereto or with the proceeds hereof. Recovery hereunder by
4                  EMPIRE FUNDING CORP. v. ARMOR

    the debtor shall not exceed the amounts paid by the debtor
    hereunder.

It is undisputed that Empire, as the assignee of Division, is the holder
of the contract and that Division was the seller of the goods and ser-
vices relating to the construction of debtors’ building.

   The state court judgment specifically held that Division and Alphin
were jointly and severally liable for the breach of contract and unfair
and deceptive trade practices claims, thereby clarifying the claims and
defenses of debtors against Division and Alphin. That judgment also
specifically absolved Empire of any liability. Applying that ruling to
the plain language of the contract, once the debtors’ claims and
defenses against seller, Division, were resolved, the Armors would be
entitled to assert the same defense against Empire as the holder of the
contract.

   However, Empire argues that the application of the doctrine of
claim preclusion under North Carolina law dictates that a final judg-
ment on the merits is conclusive not only as to matters actually liti-
gated but also to matters properly within the scope of the pleadings
which should have been adjudicated. Bruton v. Carolina Power &
Light Co., 217 N.C. 1, 6 S.E. 2d 822 (1940); Piedmont Wagon Co.
v. Byrd, 119 N.C. 460, 26 S.E. 144 (1896). Empire asserts that debt-
ors’ pleadings in the state court action raised the issue of the enforce-
ability of the loan and requested that the loan be set aside. Because
that issue was not expressly discussed in the judgment, Empire argues
that claim preclusion operates to deem it denied and thereby bars the
debtors from reasserting the same issue as an objection to Empire’s
claim and proposal to modify the debtors’ plan. Empire maintains that
the debtors had the responsibility to try their entire case at one time
and must be bound by the state court judgment of that trial.

   The Armors contend that the judgment in state court was not final
and resolved less than all of the issues between all of the parties. They
further assert that the issue of the loan enforceability was not adjudi-
cated on its merits in state court and therefore, cannot be barred by
any type of preclusion doctrine.

  Under the doctrine of claim preclusion, "a final judgment on the
merits in a prior cause of action will prevent a second suit based on
                   EMPIRE FUNDING CORP. v. ARMOR                      5

that same cause of action between the same parties or those in privity
with them." Thomas M. McInnis & Assoc. v. Hall, 318 N.C. 421, 428,
349 S.E.2d 552, 556 (1986). For this doctrine to apply, a party must
"show that the previous suit resulted in a final judgment on the merits,
that the same cause of action is involved, and that both [the party
asserting res judicata and the party against which it is asserted] were
either parties or stand in privity with parties." Id. at 429, 349 S.E.2d
at 557.

   Here the same causes of actions are involved and the parties in both
actions are identical. The Armors brought claims for damages against
Division and Alphin and claims against Empire Funding to set aside
the loan contract. While the Armors pled in the alternative in their
state action, in North Carolina, a plaintiff may not sue for the recis-
sion of a contract and its breach at the same time. The one is a disaf-
firmance of the contract; the other its affirmance. See Troitino v.
Goodman, 225 N.C. 406, 35 S.E.2d 277 (1945). The state court
addressed the issue of damages and made no determination as to
recission.

  The North Carolina Rules of Civil Procedure speak to the issue of
when a final judgment has been entered as to a claim:

       When more than one claim for relief is presented in an
    action, whether as a claim, counterclaim, cross claim or
    third-party claim, or when multiple parties are involved, the
    court may enter a final judgment as to one or more but fewer
    than all the claims or parties only if there is no reason for
    delay and it is determined in the judgment. Such judgment
    shall then be subject to review by appeal or as otherwise
    provided by these rules or other statutes. In absence of entry
    of such final judgment, any order or other form of decision,
    however designated, which adjudicates fewer than all the
    claims or the rights and liabilities of fewer than all the par-
    ties shall not terminate the action as to any of the claims or
    parties and shall not then be subject to review either by
    appeal or otherwise except as expressly provided by these
    rules or other statutes. Similarly, in the absence of entry of
    such a final judgment, any order or other form of decision
    is subject to revision at any time before the entry of judg-
6                  EMPIRE FUNDING CORP. v. ARMOR

    ment adjudicating all the claims and rights and liabilities of
    all the parties.

N.C. Rules of Civ. P. 54(b). The state court judgment did not adjudi-
cate all of the issues between all of the parties. It did not address the
issues of the Armors’ prayer that the contract be set aside or the cross
claim filed by Empire against Division on the indemnity agreement,
and no judgment was entered on either claim.

   The state court judgment is a final adjudication of the merits as to
the joint and several liability of Division, Alphin and Empire for dam-
ages. However, this judgment did not speak to the enforceability of
the loan. The state court’s omission from its judgment of any discus-
sion regarding the enforceability of the loan indicates that it did not
adjudicate that claim on its merits as is required by N.C. Rules of Civ.
P. 54(b). The state court made findings on the breach of contract
claim and never reached the issue of recission. Indeed, the loan agree-
ment remained in effect and with it any defenses to the agreement.
Empire is now asserting its rights under the agreement and the
Armors are entitled to assert their defenses. The decision of the Dis-
trict Court is affirmed.

                                                            AFFIRMED

WILKINS, Circuit Judge, dissenting:

   I respectfully dissent. I would hold that the Armors are barred
under the doctrines of claim preclusion and merger from seeking to
set aside the loan contract with Empire based on the very same factual
contentions that were the subject of a previous suit by the Armors
against Empire in which they sought to set aside the loan contract.

   The principle of merger is "a collateral aspect of res judicata which
determines the scope of claims precluded from relitigation by an
existing judgment." Edwards v. Edwards, 456 S.E.2d 126, 129 (N.C.
Ct. App. 1995) (internal quotation marks omitted). When a final judg-
ment issues, the plaintiff’s "original claim is extinguished and the
rights granted pursuant to the judgment are substituted for it, and
plaintiff’s original claim is thus said to have ‘merged’ with the judg-
                     EMPIRE FUNDING CORP. v. ARMOR                          7

ment." Id. For that reason, a final judgment concludes "all matters ...
that were or should have been adjudicated in the prior action." Id. at
130.

   Applying the doctrine of merger to this case dictates that the fac-
tual claims that the Armors now seek to assert as defenses to the loan
contract were extinguished when the Armors received a final judg-
ment on those very same claims in state court. See id. at 129-30; 46
Am. Jur. 2d Judgments § 510 (1994) (explaining that after issuance
of a judgment "all of the prior contractual rights are merged into and
extinguished by the judgment"). Were these claims not extinguished,
then after receiving the benefit of their bargain in the form of a judg-
ment against Division, the Armors could have simply turned around
and sued Empire again in state court for rescission of the loan con-
tract, thereby obtaining indisputably inconsistent remedies. Of course,
the doctrine of merger would have prevented the Armors from doing
so, and the same doctrine also bars them from asserting those claims
now.*

   I fail to understand how the majority reaches a different conclusion
in its claim preclusion analysis. The majority determines that there
was a final judgment in the first suit, albeit one not specifically adju-
dicating the Armors’ entitlement to rescind the loan contract. See
Ante, at 6. The majority also concludes that the parties and causes of
action are the same in the first and second suit. See id. at 5. The
majority recognizes that when these three elements are satisfied, the
doctrine of claim preclusion provides that the final judgment in the
first suit concludes "not only . . . matters actually litigated but also . . .
matters properly within the scope of the pleadings which should have
been adjudicated." Id. at 4. Nevertheless, having reached that point in
its analysis, the majority holds that the issue of the Armors’ entitle-
ment to rescind the loan contract was not concluded without ever

  *The Armors also argue that Division’s failure to satisfy the state court
judgment excuses the Armors’ nonperformance under the loan contract.
This argument is without merit. Claims are extinguished when the judg-
ment issues, see Edwards, 456 S.E.2d at 129, not when the judgment is
satisfied. Moreover, because Division’s duty to pay the state court judg-
ment is not a contractual one, Division’s failure to pay the judgment is
not a breach of contract.
8                   EMPIRE FUNDING CORP. v. ARMOR

explaining why the issue is not a matter that "should have been adju-
dicated" in the first suit. It most certainly should have been, as the
state trial court was presented with the facts now offered by the
Armors as a basis for rescission and was assigned the task of deter-
mining fully the legal consequences of the Armors’ allegations.

    For these reasons, I would reverse.
