dissenting.
I respectfully dissent. There is nothing in N.C. Gen. Stat. § 45-21.38 (1991) that limits the protection afforded by the prohibition against deficiency judgments to the purchasers of property. None of the cases cited by the majority addresses the issue raised by this case, and the Court should not read the reasoning of those decisions to exclude, by silence, reasoning that may be appropriate here. To say that the cases not addressing this issue “plainly illustrate” by omission is fallacious reasoning.
There are sound reasons for allowing the guarantor the protection of N.C.G.S. § 45-21.38. One is that it encourages guarantors to assist in commerce without being held to a higher level of liability than those they are attempting to assist. To extend the guarantor’s liability beyond that of the mortgagor has a chilling effect on such transactions. Another reason is that it properly puts upon the mortgagor and mortgagee the responsibility of assuring that the loan amount is in line with the value of the property being mortgaged.
The majority opinion also ignores Bank v. Belk, 41 N.C. App. 356, 255 S.E.2d 421, disc. review denied, 298 N.C. 293, 259 S.E.2d 911 (1979), in which this Court, while not addressing the issue directly, at least suggested the possibility that the guarantor could use the anti-deficiency statute as a defense, as well as the very recent case Smith v. Childs, 112 N.C. App. 672, 437 S.E.2d 500 (1993), in which this Court concluded that a reasonable purchase money mortgagee would not seek to enforce a personal guaranty against a guarantor because “in all likelihood, G.S. § 45-21.38 would operate to bar recovery.” Smith at 685, 437 S.E.2d at 508.
I vote to affirm.