                                  NO. COA14-660

                     NORTH CAROLINA COURT OF APPEALS

                          Filed: 16 December 2014


WELLS FARGO BANK, N.A., successor
by merger with WACHOVIA BANK,
NATIONAL ASSOCIATION,
     Plaintiff,

    v.                                       Dare County
                                             No. 13 CVS 361
JOHN M. CORNEAL; and wife, JORENE
S. PROPER, and SUBSTITUTE TRUSTEE
SERVICES, INC., Substitute
Trustee,
     Defendants.


    Appeal by defendants from order entered 18 February 2014 by

Judge Walter H. Godwin, Jr.            in Superior Court,       Dare   County.

Heard in the Court of Appeals 23 October 2014.


    Womble Carlyle Sandridge & Rice by Jesse A. Schaefer, for
    plaintiff-appellee.

    David R. Dixon, for defendants-appellants.


    STROUD, Judge.


    John      M.   Corneal      and    his    wife,    Jorene    S.    Proper,

(“defendants”) appeal from the trial court’s order granting a

motion   to   dismiss   their    counterclaims.       Finding   no   error,   we

affirm the trial court’s order.

                             I.       Background
                                     -2-
    On or about 5 December 2008, defendants and Wachovia Bank,

National   Association      executed   a   note,    in    which   defendants

promised to pay a principal amount of $389,890.                   The note’s

payment schedule includes a balloon payment on 4 December 2011,

the maturity date.       The parties secured the note by a deed of

trust on a parcel of Hatteras real property owned by Corneal.

Wells   Fargo    Bank,   N.A.      (“plaintiff”)    is    Wachovia     Bank’s

successor by merger.

    Defendants failed to make the balloon payment upon maturity

of the note.     On or about 27 January 2012, plaintiff notified

defendants of their right to cure the default.              On or about 27

March 2012, plaintiff mailed defendants a notice of foreclosure.

    On 10 July 2013, plaintiff sued defendants for breach of

contract   and   judicial     foreclosure.     On    30    September    2013,

defendants answered, raised affirmative defenses, and brought

counterclaims for violations of the Unfair and Deceptive Trade

Practices Act (“UDTPA”) and the North Carolina Debt Collection

Act (“NCDCA”).      See N.C. Gen. Stat. ch. 75 (2013). On 2 December

2013,   plaintiff     moved   to   dismiss   defendants’      counterclaims

pursuant to North Carolina Rule of Civil Procedure 12(b)(6).

See N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) (2013). On 17 February

2014, the trial court held a hearing on plaintiff’s motion.                On
                                             -3-
18 February 2014, the trial court granted plaintiff’s motion.

On 19 March 2014, defendants timely filed a notice of appeal.

                         II.     Appellate Jurisdiction

    Although defendants concede that the trial court’s order is

interlocutory,       they      contend       that       the   order    is     immediately

appealable because it affects a substantial right.                                 Immediate

appeal is available from an interlocutory order that affects a

substantial right. Peters v. Peters, ___ N.C. App. ___, ___, 754

S.E.2d   437,    439    (2014).        The     appellant      bears    the     burden       of

demonstrating        that      the     order       is     appealable        despite        its

interlocutory nature. Hamilton v. Mortg. Info. Servs., Inc., 212

N.C. App. 73, 77, 711 S.E.2d 185, 189 (2011). It is not the duty

of this Court to construct arguments for or find support for an

appellant’s     right       to       appeal;       the    appellant         must    provide

sufficient facts and argument to support appellate review on the

ground that the challenged order affects a substantial right.

Id. at 79, 711 S.E.2d at 190.

    In determining whether a particular interlocutory order is

appealable,     we     examine       (1)     whether      a   substantial          right    is

affected   by     the       challenged         order      and    (2)        whether    this

substantial     right    might       be    lost,    prejudiced,        or    inadequately

preserved in the absence of an immediate appeal. Id. at 78, 711
                                             -4-
S.E.2d at 189. We take a “restrictive” view of the substantial

right      exception   and    adopt      a   case-by-case        approach.         Id.,     711

S.E.2d at 189.

       A    party   has   a   substantial          right    to   avoid       two    separate

trials of the same issues. Id. at 79, 711 S.E.2d at 190. Issues

are the “same” if the facts relevant to their resolution overlap

in such a way as to create a risk that separate litigation of

those issues might result in inconsistent verdicts. Id., 711

S.E.2d at 190. “The mere fact that claims arise from a single

event,       transaction,     or    occurrence        does       not,     without         more,

necessitate a conclusion that inconsistent verdicts may occur

unless all of the affected claims are considered in a single

proceeding.” Id. at 80, 711 S.E.2d at 190.

       Here, defendants assert that “the issues brought to the

jury    by    the   complaint,        the    defenses       that    remain,         and    the

counterclaims       are     the    same—the        effect    and        meaning     of     the

promissory note, deed of trust, and the bank’s actions (or lack

thereof) surrounding the execution of the same.”                              Defendants’

counterclaims       include        the    allegation        that,       at    the     loan’s

execution,      Wachovia      Bank,      plaintiff’s       predecessor-in-interest,

promised that defendants could refinance the loan upon maturity.

Defendants’ affirmative defenses of estoppel and unclean hands
                                            -5-
also     include     this    allegation.           Accordingly,      we     hold   that

defendants have shown that their counterclaims and plaintiff’s

claims       share    a    common    factual       issue,     such   that      separate

litigation of these claims may result in inconsistent verdicts.

See    id.    at     79,    711    S.E.2d    at    190.     Defendants      thus      have

successfully demonstrated that the trial court’s order affects a

substantial        right.    See    id.     at    77,   711   S.E.2d      at   189.    We

therefore have jurisdiction to review this order. See Peters,

___ N.C. App. at ___, 754 S.E.2d at 439.

                              III. Motion to Dismiss

       Defendants contend that the trial court erred in dismissing

their counterclaims pursuant to Rule 12(b)(6).                         See N.C. Gen.

Stat. § 1A-1, Rule 12(b)(6).

A.     Standard of Review

                   The standard of review of an order
              granting a 12(b)(6) motion is whether the
              complaint states a claim for which relief
              can be granted under some legal theory when
              the complaint is liberally construed and all
              the allegations included therein are taken
              as true. On a motion to dismiss, the
              complaint’s material factual allegations are
              taken as true. Legal conclusions, however,
              are not entitled to a presumption of
              validity. Dismissal is proper when one of
              the following three conditions is satisfied:
              (1) the complaint on its face reveals that
              no law supports the plaintiff’s claim; (2)
              the complaint on its face reveals the
              absence of facts sufficient to make a good
                                      -6-
            claim; or (3) the complaint discloses some
            fact    that    necessarily  defeats   the
            plaintiff’s claim.

Guyton v. FM Lending Servs., Inc., 199 N.C. App. 30, 33, 681

S.E.2d 465, 469 (2009) (citations and quotation marks omitted).

We conduct a de novo review of the pleadings to determine their

legal sufficiency. Burgin v. Owen, 181 N.C. App. 511, 512, 640

S.E.2d 427, 429, disc. rev. dismissed and appeal dismissed, 361

N.C. 425, 647 S.E.2d 98, cert. denied, 361 N.C. 690, 652 S.E.2d

257 (2007).

B.   Unfair and Deceptive Trade Practices Act

     To establish a prima facie UDTPA claim, a plaintiff must

show that:     (1) the defendant committed an unfair or deceptive

act or practice; (2) the action in question was in or affecting

commerce;    and   (3)   the   act   proximately   caused   injury   to   the

plaintiff. Phelps Staffing, LLC v. C.T. Phelps, Inc., ___ N.C.

App. ___, ___, 740 S.E.2d 923, 928 (2013); see also N.C. Gen.

Stat. ch. 75.

            A practice is properly deemed unfair when it
            offends established public policy as well as
            when the practice is immoral, unethical,
            oppressive, unscrupulous, or substantially
            injurious to consumers or amounts to an
            inequitable assertion of power or position.
            To   prove   deception,   while   it   is   not
            necessary    to   show   fraud,   bad    faith,
            deliberate or knowing acts of deception, or
            actual    deception,    a    plaintiff    must,
                                           -7-
                 nevertheless, show that the acts complained
                 of possessed the tendency or capacity to
                 mislead,   or  created  the  likelihood  of
                 deception.

Capital Resources, LLC v. Chelda, Inc., ___ N.C. App. ___, ___,

735    S.E.2d      203,    212    (2012)    (citations      and     quotation          marks

omitted), disc. rev. dismissed and cert. denied, ___ N.C. ___,

736 S.E.2d 191 (2013). A UDTPA action is distinct from a breach

of contract action; a plaintiff must allege and prove egregious

or    aggravating         circumstances     to    prevail      on   a   UDTPA       claim.

McKinnon v. CV Indus., Inc., 213 N.C. App. 328, 340, 713 S.E.2d

495,    504,      disc.    rev.   denied,     365   N.C.    353,      718       S.E.2d   376

(2011).

       In Overstreet v. Brookland, Inc., the defendant promised to

the plaintiff that no part of a subdivision would be used for

non-residential purposes, but one year later, sold a subdivision

lot    to    a    buyer    whom   it   knew      would   use    the     lot      for     non-

residential purposes. 52 N.C. App. 444, 451-52, 279 S.E.2d 1, 6

(1981). This Court held that the defendant had not violated the

UDTPA, because no evidence indicated that the defendant intended

to break its promise at the time defendant made the promise. Id.

at 452-53, 279 S.E.2d at 6-7. Similarly, in Opsahl v. Pinehurst

Inc.,       the    defendant’s     agent      represented       that        a    projected

completion date was firm and would be met. 81 N.C. App. 56, 69,
                                     -8-
344 S.E.2d 68, 76 (1986), disc rev. improvidently allowed per

curiam, 319 N.C. 222, 353 S.E.2d 400 (1987). The defendant,

however, failed to meet the projected completion date. Id., 344

S.E.2d at 76-77. This Court held that the defendant had not

violated the UDTPA.     Id. at 70, 344 S.E.2d at 77.

       Here, defendants alleged that plaintiff broke its promise

to     allow   defendants   to    refinance   the   loan    upon    maturity.

Defendants, however, did not allege that plaintiff intended to

break its promise at the time that it made the promise. In light

of Overstreet and Opsahl, we hold that defendants’ allegation

that    plaintiff   broke   its    promise,   standing     alone,   does   not

constitute a UDTPA claim. See Overstreet, 52 N.C. App. at 452-

53, 279 S.E.2d at 6-7; Opsahl, 81 N.C. App. at 70, 344 S.E.2d at

77.

C.     North Carolina Debt Collection Act

       To establish a NCDCA claim, a plaintiff must show, among

other elements, that:       (1) the obligation owed is a “debt”; (2)

the one owing the obligation is a “consumer”; and (3) the one

trying to collect the obligation is a “debt collector.” Green

Tree Servicing LLC v. Locklear, ___ N.C. App. ___, ___, 763

S.E.2d 523, 527 (2014); see also N.C. Gen. Stat. §§ 75-50 to -56

(2013). A “consumer” means “any natural person who has incurred
                                            -9-
a   debt    or   alleged   debt       for    personal,      family,    household      or

agricultural purposes.” N.C. Gen. Stat. § 75-50(1). Defendants

did   not    allege    that    they      incurred     the    debt    for   “personal,

family,      household        or      agricultural          purposes.”        See     id.

Accordingly,      we   hold    that      defendants    did     not    state    a    NCDCA

claim.

                                   IV.   Conclusion

      Because defendants have failed to state a claim under the

UDTPA or the NCDCA, we affirm the trial court’s order dismissing

defendants’ counterclaims.

      AFFIRMED.

      Judges GEER and BELL concur.
