N.C. Court of Appeals: Ussery v. BB&T- Statute of Limitations and Equitable Estoppel


Ussery brought suit against BB&T as a result of a failure to qualify for a government loan, more than six years after a learning of the denial of the loan. The causes of action were subject to a three year Statute of Limitations, but Ussery argued that under a theory of equitable estoppel, BB&T should not be allowed to assert such defense, as it had during the pendency of a lawsuit by Barker, a partner, actively dissuaded Ussery from bringing his own lawsuit earlier.

The elements of equitable estoppel as follows:
(1) As related to the party estopped:
(A) Conduct which amounts to a false representation or concealment of material facts, or, at least, which is reasonably calculated to convey the impression that the facts are otherwise than, and inconsistent with, those which the party afterwards attempts to assert;
(B) intention or expectation that such conduct shall be acted upon by the other party, or conduct which at least is calculated to induce a reasonably prudent person to believe such conduct was intended or expected to be relied and acted upon;
(C) knowledge, actual or constructive, of the real facts.
(2) As related to the party claiming estoppel:
(A) lack of knowledge and [lack of] the means of knowledge of the truth as to the facts in question;
(B) reliance upon the conduct of the party sought to be estopped; and
(C) action based thereon of such a character as to change his position prejudicially.
See In re Will of Covington, 252 N.C. 546, 549, 114 S.E.2d 257 (1960)

BB&T had allegedly assured Ussery that “everything would be worked out in the Barker litigation” and requested that Ussery “hold off on instituting any action to allow resolution of the Barer matter [and Ussery’s claims against BB&T.]” This was similar to the promises made in Duke Univ. v. Stainback, 320 N.C. 337, 357 S.E.2d 690 (1987), where the defendant had promised “to keep Duke informed of the situation” in his pending personal injury lawsuit and was subsequently equitably estopped from asserting the Statute of Limitations. Stainback was also instructive as to the lack of knowledge, since if Duke Hospital (“one of the most highly regarded universities in the nation”) can fall prey to dilatory promises, a less sophisticated businessman should not be held to a higher standard.

Judge Dillon dissented as BB&T being equitably estopped, believing that the assurances made by BB&T were not to delay litigation but instead a promise of debt forgiveness, which would have been barred by the Parol Evidence Rule.

For a copy of the opinion, please see:

Ussery v. BB&T- Statute of Limitations and Equitable Estoppel.pdf


1. Bachelor of Arts degree in English Literature from Washington University, 1993. 2. Juris Doctor degree from George Washington University, 1996. Admissions to Practice of Law: North Carolina Bar, 1996. Federal District Courts for the Eastern and Middle Districts of North Carolina. Specialty Certification: North Carolina State Bar: Certified as a Specialist in Consumer Bankruptcy. Areas of Practice: Practice limited to consumer and business debtor bankruptcy law, 1998 to present. Memberships: National Association of Consumer Bankruptcy Attorneys (NACBA). North Carolina Academy of Trial Lawyers (NCATL). North Carolina Bar Association, Bankruptcy Section. Lectures prepared and presented: North Carolina Academy of Trial Lawyers seminar on bankruptcy; Topic: Counseling the Consumer Debtor Prior to Court - C.Y.A. Forms to Help 'Gird They Loins'; 2001. Middle District Bankruptcy Seminar; Topic: Preparing Chapter 13 Plans; 2002. NACBA National Convention; Topic: Efficient Office Practices; 2003. NACBA National Convention; Topic: Chapter 7 vs. Chapter 13 Debates; 2004. Middle District Bankruptcy Seminar; Topic: Chapter 7 & 13 Hot Issues; 2004. Positions held: NACBA National Convention; Convention Chair; 2008. NACBA National Convention; Panel Moderator: Topic: Basic Bankruptcy Issues; 2008. NACBA National Convention; Panel Moderator; Topic: Chapter 13-Disposable Income and Other Issues; 2007. NACBA National Convention; Panel Moderator; Topic: Representing Members of the Military and Their Families; 2007. NACBA, Member of National Board of Directors, 2006 to present. NCATL, Chair of the Bankruptcy Section, 2003 to 2007. NACBA, Chair of the North Carolina Section, 2003 to 2007. NC Bar Association, Bankruptcy Section, Bankruptcy Council Member, 2004 to present.

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