An unpublished opinion of the North Carolina Court of Appeals does not constitute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. COA13-1273
                        NORTH CAROLINA COURT OF APPEALS

                              Filed: 5 August 2014


WELLS FARGO BANK, N.A.,
     Plaintiff,

      v.                                      Mecklenburg County
                                              No. 12 CVS 12252
KEVIN SCOTT FISCHER,
     Defendant.


      Appeal by Defendant from order entered 22 July 2013 by

Judge Robert T. Sumner in Mecklenburg County Superior Court.

Heard in the Court of Appeals 7 May 2014.


      Parker Poe Adams & Bernstein LLP, by William L. Esser IV
      and Katie M. Iams, for Plaintiff.

      Ellis & Parker PLLC, by L. Neal Ellis, Jr., and Nathaniel
      Parker, for Defendant.


      STEPHENS, Judge.


                    Procedural and Factual Background

      This appeal arises from an attempt by Plaintiff Wells Fargo

Bank,      N.A.,   to   collect     damages     and    attorney’s      fees    from

Defendant Kevin Scott Fischer as a result of his default on two

promissory notes executed in 2008.                  In 2006, Fischer signed
                                          -2-
purchase       agreements    on    two    lots,      numbers    77   and     78,     in    a

development known as “Grandfather Vistas.”1                    The purchase of the

lots was part of a large investment scheme which has resulted in

other lawsuits and appeals to this Court.                    In greatly simplified

form,    the    scheme     involved      the    sale    of   certain    lots       by    the

Grandfather       Vistas    developers          to   investment      purchasers          for

$500,000 each.           Under the scheme, the developers promised to

repurchase the lots from the investment purchasers after twelve

months    for    $625,000     apiece      and    also    promised      to    cover       all

interest payments on the loans.                  Thus, in effect, they offered

the investment purchasers a guaranteed return of $125,000 in

twelve months on each lot purchased.                     The developers arranged

for Wells Fargo and two other banks to be “preferred lenders” in

the sale of the lots.             The other two lenders used an appraiser

named A. Greg Anderson exclusively for appraisals as part of

their    underwriting       process.            Wells   Fargo     employed      several

appraisers to value properties in Grandfather Vistas, including

Kyle     Knight,    who     appraised          Fischer’s     lots.          Every       lot,

regardless of the appraiser used, was appraised at $500,000, the



1
  The record suggests that Fischer purchased additional lots
using loans from another lender. Those loans are not part of
this action.
                                        -3-
exact minimum value required to support the 90% loan-to-value

loans the developers had arranged with the preferred lenders as

part of the investment scheme.2               The money raised by the sales

was supposed to finance the development of Grandfather Vistas,

such that the developers would end up with a development of

residential lots ready for sale after their repurchase from the

investment purchasers.          However, the money raised by the sales

was not put back into the development, the developers never

repurchased    the      lots,    and,     by     2007,   Grandfather    Vistas

collapsed,    leaving    the    investment      purchasers   with   large   loan

obligations and lots worth only a fraction of their appraised

values.    Several of the developers later faced criminal charges

in connection with the investment scheme.

    Fischer’s two loans from Wells Fargo were evidenced by two

promissory notes dated 27 September 2006, each in the original

principal amount of $455,717.             Each required Fischer to make

monthly interest payments for 25 months and to repay the entire

amount of the principal and accrued interest by 27 September

2008.     Following the collapse of Grandfather Vistas, Fischer

asked Wells Fargo to refinance both of his loans, which Wells



2
  The loans were originally made by Wachovia Bank, N.A.                     Wells
Fargo is the successor by merger to Wachovia Bank, N.A.
                                    -4-
Fargo agreed to do.       On 15 October 2008, Fischer executed and

delivered   to   Wells   Fargo   two   promissory    notes,   each   in    the

original principal amount of $458,621.57.             Under each of the

2008 notes, Fischer was required to make monthly payments for 35

months and to repay the entire amount of the original principal

and accrued interest by 15 October 2011.            Fischer defaulted on

both 2008 notes.

      In December 2008, Fischer and other investment purchasers

initiated a lawsuit against, inter alia, the developers, Wells

Fargo, other lenders involved in the scheme, and Anderson (“the

Fazzari case”).3    The Fazzari plaintiffs brought claims of, inter

alia, negligence, negligent misrepresentation, conversion, and

civil conspiracy against Wells Fargo, alleging that the bank had

conspired   with   the   other   defendants   to    sell   overvalued     lots

based on inflated appraisals and had engaged in wrongful conduct

in making the loans used to purchase Grandfather Vistas lots.

Fischer sought damages and rescission of the 2008 notes.

      In the Fazzari case, on 15 July 2011, Anderson moved for

summary judgment on all remaining claims4 against him, asserting



3
  None of the Wells Fargo appraisers were named as defendants in
the Fazzari case.
4
    The record in   the Fazzari case suggests that some of the
                                            -5-
inter alia, that the Fazzari plaintiffs could not show reliance

on any of his alleged misrepresentations.                       On the same date, the

lenders filed motions for summary judgment as to all remaining

claims against them, on their counterclaims against the Fazzari

plaintiffs, and for attorneys’ fees.                         On 16 February 2012, the

court   entered    summary      judgment          in    favor    of   Anderson   on    all

claims against him.        By order entered 8 March 2012, the court

dismissed all remaining claims against Wells Fargo and the other

lender defendants in the Fazzari case.

    On 25 June 2012, Wells Fargo initiated this action against

Fischer by filing a complaint alleging Fischer had defaulted on

the 2008 notes.        On 8 October 2012, Fischer filed an answer and

motion to dismiss, asserting that Wells Fargo had failed to

state a claim upon which relief could be granted because the

issue of any monies owed under the 2008 notes was not ripe while

the Fazzari appeal was pending.                    On 19 June 2013, Wells Fargo

moved   for    summary     judgment,          supporting           that   motion      with

Fischer’s     responses        to     its    requests           for   admissions,     the

affidavit     of   a    bank        employee,          and    portions    of   Fischer’s



original Fazzari plaintiffs settled or withdrew their claims, or
otherwise dropped out of that case before the lenders and
appraiser filed their motions for summary judgment.
                                          -6-
deposition from the Fazzari case.                In response, Fischer argued

that    resolution     of   the    summary       judgment    motion    should    be

postponed and supported this request with (1) an amended joint

motion for continuance filed by the parties on 28 March 2013,

which sought to continue the trial date in the matter in light

of the complexity of the underlying factual circumstances; and

(2) a copy of the 10 July 2013 default judgment order entered

against the developer defendants in the Fazzari case.                      Following

a hearing, on 22 July 2013 the trial court entered an order

granting summary judgment in favor of Wells Fargo.                          Fischer

appeals.

                                   Discussion

       Fischer   argues     that   the     trial    court   erred     in   entering

summary judgment for Wells Fargo and granting a money judgment

against Fischer.       We disagree.

           It is well settled that summary judgment is
           appropriate     only    if    the    pleadings,
           depositions, answers to interrogatories, and
           admissions   on   file,    together  with   the
           affidavits, if any, show that there is no
           genuine issue as to any material fact and
           that any party is entitled to a judgment as
           a matter of law. . . .           The record is
           considered in the light most favorable to
           the party opposing the motion.

Marcus Bros. Textiles, Inc. v. Price Waterhouse, LLP, 350 N.C.

214,   219-20,   513    S.E.2d     320,    324     (1999)   (citation,     internal
                                              -7-
quotation marks, and emphasis omitted).                          “The movant has the

burden of establishing the lack of any triable issue of fact.”

Rankin v. Food Lion, 210 N.C. App. 213, 215, 706 S.E.2d 310, 312

(2011)     (citation          and     internal       quotation         marks       omitted).

However, “[o]nce the party seeking summary judgment makes the

required showing, the burden shifts to the nonmoving party to

produce a forecast of evidence demonstrating specific facts, as

opposed to allegations, showing that he can at least establish a

prima facie case at trial.”                    Id. at 217, 706 S.E.2d at 313

(citation and internal quotation marks omitted; italics added).

“[A]ffidavits or other material offered which set forth facts

which    would    not     be        admissible      in    evidence       should     not    be

considered when passing on the motion for summary judgment.”

Id. at 218, 706 S.E.2d at 314 (citation and internal quotation

marks omitted).          Further, “the trial court may not consider an

unverified       pleading       when     ruling      on    a     motion      for     summary

judgment.”        Id.    at    220,     706    S.E.2d     at    315-16      (citation     and

internal quotation marks omitted).

    Here,     Fischer         admitted        executing        the   2008    notes     which

required     full       repayment       no     later      than       October    2011      and

defaulting on those obligations such that their unpaid balance

is in the amount alleged by Wells Fargo.                       In his answer, Fischer
                                    -8-
alleged   three   affirmative     defenses:      (1)    that   Wells   Fargo

breached the implied duty of good faith and fair dealing in

making the loans; (2) estoppel, unclean hands, and laches; and

(3) the risk of inconsistent verdicts in light of the Fazzari

case.     However,   Fischer failed to present any affidavits or

other   sworn   evidence   in   support   of   these   defenses.5      Having

admitted defaulting on the 2008 notes and failing to forecast

evidence in support of even a prima facie case for his alleged

affirmative defenses, Fischer simply did not meet his burden on

summary judgment.    See id. at 217, 706 S.E.2d at 313.

    Further, we note that, even had Fischer presented sworn

evidence in support of his affirmative defenses, he would not

prevail on the merits of those defenses in light of our decision

in the Fazzari case.       “[I]f the granting of summary judgment can

be sustained on any grounds, it should be affirmed on appeal.

If the correct result has been reached, the judgment will not be

disturbed even though the trial court may not have assigned the

5
  Fischer notes that he did submit a document entitled “Exhibit A
Detailed Statement of Facts Supporting Defenses/Counterclaims
asserted by Fischer (including references to documents and
deposition transcripts from the Fazzari Litigation).”    However,
this document is both unsworn and, more importantly, merely a
summary of excerpts from evidence in the Fazzari case.
Accordingly, the document was not evidence to be considered by
the trial court in ruling on the summary judgment motion.
                                          -9-
correct reason for the judgment entered.”                  Rankin, 210 N.C. App.

at 215, 706 S.E.2d at 313 (citation, internal quotation marks,

and    brackets        omitted).         We    have    considered      and    rejected

Fischer’s arguments in the Fazzari case, filed contemporaneously

with this opinion.           See Fazarri v. Infinity Partners, LLC, __

N.C. App. __, __ S.E.2d __ (2014).                For the reasons discussed in

that opinion, summary judgment for Wells Fargo was proper in

this   action     to    collect     on   the    2008   notes,   even    had    Fischer

adequately      supported     his    alleged      affirmative    defenses.         See

Rankin, 210 N.C. App. at 215, 706 S.E.2d at 313 (“If the correct

result has been reached, the judgment will not be disturbed . .

. .”).      Accordingly, the trial court’s order granting Wells

Fargo’s motion for summary judgment is

       AFFIRMED.

       Judges STROUD and MCCULLOUGH concur.

       Report per Rule 30(e).
