Guardian answers lawsuit

Guardian answers lawsuit
December 31
00:00 2015

By Cash Michaels

For The Chronicle

A Winston-Salem attorney who has served as estate guardian on several controversial cases associated with the Forsyth County Clerk of Superior Court’s office has filed a 32-page answer and counterclaim to a lawsuit that alleges he engaged in “… a pattern and practice of fraudulent acts …” that resulted in the loss of over $1.4 million of a deceased African-American woman’s assets.

In his answer filed by attorney Molly Whitlatch of Greensboro on Dec. 16 in Forsyth Superior Court and obtained by The Chronicle, attorney Bryan C. Thompson claims no wrongdoing, calling the allegations “… frivolous and baseless,” and seeks to have the lawsuit thrown out on various technicalities.

Thompson also wants the court to sanction his accusers.

Last October, The Chronicle first and exclusively reported on the lawsuit filed in Forsyth County Superior Court by plaintiff’s attorney Reginald D. Alston of Winston-Salem on behalf of the estate of the late Mary Ellen Brannon Thompson – administered by her brother, Calvin Brannon prior to his recent death – against the Forsyth Clerk’s office, two insurance companies, and several local attorneys, including attorney Bryan Thompson, who was, according to the lawsuit, “fraudulently” appointed estate guardian and allegedly squandered Ms. Thompson’s assets.

The suit alleges that attorney Thompson (no relation to Mary Thompson) had someone in the Forsyth Clerk of Court office to “… sign a guardianship appointment in his favor on May 1, 2007 without giving notice to Mary Thompson and her next of kin as it is required …” by state statutes. The suit further claimed that because evidence of incompetency was not initially presented, as legally required, attorney Thompson knew that the “… guardianship appointment in his favor was fictitious… [and] used it to fraudulently obtain possession and control over the assets of Mary Thompson in May of 2007.”

The Clerk’s Order of Incompetency on Mary Thompson was not, in fact, issued until May 3, 2007, two days after attorney Thompson’s appointment, the suit maintains. In addition, because none of the Clerk’s orders were properly file stamped and entered into the court record as required by state statutes anyway, the N.C. Court of Appeals in February 2014 found that “…  all of attorney Thompson’s actions regarding the estate of Mary Thompson … were without legal authority.”

Forsyth County Clerk of Superior Court Susan Frye reacted to that February 2014 appellate court ruling by issuing a “Findings of Fact” in the Mary Ellen Thompson case in April of that same year, acknowledging per the appellate decision that “… the orders were not properly entered …,” thus creating “… an inadvertent defect …”

Frye decided she could deal with that seven-year-old “inadvertent defect” by simply declaring that the orders could be belatedly entered per the legal principle of nunc pro tunc, which is Latin for “now for then,” meaning that if a court made a mistake in a previous order, it can simply correct it after the fact.

She ordered all of the orders to be re-entered under their original dates nunc pro tunc, except the order authorizing attorney Thompson to become the ward’s estate guardian. On that one, realizing the conflict of dates, she had that changed from May 1, 2007 to May 3, 2007, to match the original date of the incompetency order.

Frye’s orders were appealed, however, and found to be procedurally improper in Superior Court. She appealed that decision to the state appellate court, which has yet to rule.

In October of that same year Mary Thompson died, legally halting most issues dealing with her estate.

The lawsuit “… seeks all of [Ms. Thompson’s] assets [valued at $1,486,415.49] returned to the estate and holds liable estate guardian attorney Thompson; the Office of Forsyth Clerk of Court; guardian ad litem Fred Flynt; along with two insurance companies on the bond issued to protect Mary Thompson’s assets as required by law; and two other attorneys for their alleged roles in what the suit maintains was a case of fraud,” The Chronicle reported Oct. 23.

In her legal answer filed on behalf of Bryan Thompson, Forsyth Clerk Susan Frye and the other defendants named in the lawsuit, attorney Whitlatch introduced several motions to dismiss, among them technicalities for alleged improper service of process, improper process, and failure to state a claim per allegations of fraud.

“The allegations that $1.4 million in assets were obtained by fraud and allegations of a RICO (Racketeer Influenced and Corrupt Organization) enterprise used to purportedly defraud the Plaintiff of more than $1.6 million in assets are in bad faith and for improper inflammatory purposes,” attorney Whitlatch wrote in her answer and counterclaim. “Plaintiff (estate administrator Calvin Brannon) and his counsel knew or should have known that the assets were worth a fraction of such amount, and have made misleading allegations implying that Defendants took such assets for their own benefit when in fact, the assets were used for the benefit of Mary Thompson.”

“Accordingly, Defendant [Bryan] Thompson moves to strike these allegations, and further moves pursuant to Rule 11 of the North Carolina Rules of Civil Procedure for sanctions in that the allegations are frivolous and baseless,” attorney Whitlatch continued.

Further on in the document, which also contained other counterclaims and motions to strike, it is stated “On information and belief, prior to 2014, it was the practice of the Forsyth County Clerk of Superior Court not to file stamp any Orders that had been prepared and executed by representatives of the Clerk of Superior Court.”

In her answer, attorney Whitlatch doesn’t say why the Forsyth Clerk’s office was not in compliance, or even allowed to not be in compliance, with the state mandate by the Administrative Office of the Courts to file stamp all court orders, but she maintains that attorney Thompson “acted in good faith in carrying out duties under the Orders …,” effectively saying that he did nothing wrong, and relied on the directives of the Clerk’s Office.

Attorney Whitlatch also asks the court in her answer that if the appeal on the April 2014 nunc pro tunc order by Clerk Frye to effectively post-date the non-file-stamped orders is not upheld, that attorney Thompson should still be considered the “de facto guardian or trustee” of Mary Thompson’s estate, and not be punished for doing his job accordingly.

In conclusion, attorney Whitlatch seeks dismissal of the lawsuit “with prejudice; “judgment be entered against the plaintiff and in favor of defendant on all claims and counterclaims;” attorneys’ fees paid by the plaintiff; and a stay of the lawsuit pending a decision by the NC Court of Appeals regarding the nunc pro tunc matter.

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