In re Mattick

496 B.R. 792, 2013 WL 3866497, 2013 Bankr. LEXIS 2986
CourtUnited States Bankruptcy Court, W.D. North Carolina
DecidedJuly 25, 2013
DocketNo. 13-30124
StatusPublished
Cited by1 cases

This text of 496 B.R. 792 (In re Mattick) is published on Counsel Stack Legal Research, covering United States Bankruptcy Court, W.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Mattick, 496 B.R. 792, 2013 WL 3866497, 2013 Bankr. LEXIS 2986 (N.C. 2013).

Opinion

MEMORANDUM OPINION

LAURA T. BEYER, Bankruptcy Judge.

This matter came on for hearing on June 4, 2013, on a number of motions and objections relating to the above-referenced Debtor’s Chapter 13 bankruptcy plan and petition. Present for the hearing were the Debtor and his counsel Bryan W. Stone; Debra Bryan Mahony (“Ms. Mahony”), attorney-in-fact for creditor Alice A. Bryan (“Ms. Bryan”), and her counsel Heather W. Culp and Christopher J. Culp; Steven G. Tate, the substitute Chapter 13 trustee (“the Chapter 13 Trustee”); and counsel for Regions Bank, James W. Sheedy. Before the Court were Ms. Mahony’s Objection to Confirmation, Objection to Exemptions, and Motion to Convert Case, for Cause, to Chapter 7; the Chapter 13 Trustee’s Objection of Trustee to Confirmation of Plan and Motion to Dismiss; the Debt- or’s Motion for Relief from Administrative Order Establishing Procedure for the Disbursement of Post-Petition Conduit Mortgage Payments (“Motion to Exclude Conduit Payment”); and the Debtor’s Motion to Voluntarily Dismiss Chapter 13 and Re[795]*795sponse to Motion to Convert. The Court announced its decision from the bench on June 5, 2013, and this Memorandum Opinion constitutes its findings of fact and conclusions of law.

Having reviewed and considered the pleadings and other matters of record in the Debtor’s bankruptcy case and in the two associated adversary proceedings,1 as well as the evidence and legal arguments presented at the June 4 hearing, the Court determines that Ms. Mahony’s Motion to Convert Case, for Cause, to Chapter 7 should be granted and the Debtor’s Motion to Voluntarily Dismiss Chapter 13 should be denied. Further, the Court finds that the Objections to Confirmation of Ms. Ma-hony and the Chapter 13 Trustee should be sustained; and that Ms. Mahony’s Objection to Exemptions should be sustained.

Findings of Fact

1. The Debtor voluntarily filed a petition for Chapter 13 bankruptcy relief on January 23, 2013.

2. Ms. Mahony is the attorney-in-fact for Ms. Bryan pursuant to a power of attorney. Ms. Bryan is the former spouse of the Debtor and is a citizen and resident of Mooresville, Iredell County, North Carolina. Ms. Bryan is also a creditor in the Debtor’s case and appears to hold the largest unsecured claim in this case.

3. The Debtor and Ms. Bryan were married on May 4, 1974 and were separated on October 12, 1993. Two children, both of whom have reached the age of majority, were born of the marriage.

4. The Debtor and Ms. Bryan entered into a Separation and Property Settlement Agreement on May 5, 1995 (“the 1995 Separation Agreement”). The 1995 Separation Agreement was not made a part of their divorce judgment. At the time that the Debtor entered into the 1995 Separation Agreement, the Debtor knew that Ms. Bryan had been diagnosed with multiple sclerosis, that her disease was chronic, and that, over time, a worsening of her condition was a strong possibility. The 1995 Separation Agreement provides, in pertinent part, as follows:

11. Medical Insurance and Payment. The Husband shall continue to provide and pay for major medical and hospitalization insurance for the benefit of the Wife and the parties’ children. The Husband’s obligation to provide and pay for said insurance shall continue for the Wife indefinitely but shall terminate as to the parties’ children as each child attains the age of eighteen (18) years. The Husband shall provide the coverage presently existing for the benefit of the Wife and the parties’ children. In the event the Wife remarries, the Husband’s obligation to provide this coverage shall cease.
The Husband agrees to reimburse the Wife and the parties’ children for any expenses not covered by major medical and/or hospitalization and dental insurance. In this regard, the Husband agrees to maintain a five hundred dollar balance in a special checking account to be opened by the Wife for this purpose. 23. Specific Performance. Either party shall have the right to compel the performance of the provisions of this Agreement by suing for specific performance in the courts where jurisdiction of the parties and subject matter exists. Should either party be forced to enforce the Agreement by way of a lawsuit for specific performance, then the other party shall be responsible for the payment of the injured party’s costs and expenses incurred, including reasonable attorney fees, should the injured party prevail upon his or her lawsuit for specific performance.

[796]*7965. The 1995 Separation Agreement remains in Ml force and effect.

6. In July 2002, Ms. Bryan sued the Debtor in the North Carolina General Court of Justice, Mecklenburg County, District Court Division, seeking specific enforcement of paragraph 11 of the 1995 Separation Agreement and attorney’s fees. Bryan v. Mattick, No. 02-CVD-11074 (N.C.Dist.Ct. July 2002). The matter was resolved through entry of a consent judgment on November 12, 2002 (“the 2002 Consent Judgment”) that was signed by the Debtor and his then-counsel of record. The Mecklenburg County District Court retained jurisdiction to enforce the 2002 Consent Judgment and the 1995 Separation Agreement.

7. In 2010, the issue of the Debtor’s failure to pay Ms. Bryan’s medical insurance and expenses as set forth in the 1995 Separation Agreement was again before the Mecklenburg County District Court as was his failure to abide by the 2002 Consent Judgment. Ms. Bryan filed a motion for enforcement and for contempt, and the Debtor filed a counterclaim seeking a declaration of rights and responsibilities. The 2010 dispute again centered on the Debt- or’s responsibility under the 1995 Separation Agreement, this time for certain charges not covered in Ml by either Medicare or major medical insurance. In particular, at issue were certain charges arising from Ms. Bryan’s April 2009 removal from her private residence and admission into an assisted living facility upon the advice and direction of her attending physician. The Honorable Jena P. Culler, Mecklenburg County District Court Judge presiding, found that Ms. Bryan’s removal from her private residence and admission into an assisted living facility was a medical necessity, and that, on the facts before her, reasonable assisted living expenses were covered under the plain language meaning of “expenses not covered by major medical ... insurance” in paragraph 11 of the 1995 Separation Agreement. Judge Culler ordered the Debtor to reimburse Ms. Bryan the unpaid uninsured medical expenses owed by him for amounts that had accrued from April 2009 through August 2010, in the amount of $41,475.56, within 12 months. Judge Culler retained jurisdiction to enforce her order as well as the 2002 Consent Judgment.

8. The Debtor appealed Judge Culler’s December 2010 order to the North Carolina Court of Appeals. The Court of Appeals affirmed the trial court’s order with one exception: it remanded for purposes of amending paragraphs 17 and 18 of the December 2010 Order to address certain “upgrades” for cable and other services. Bryan v. Mattick, 716 S.E.2d 876 (Table), 2011 WL 4919340, at *8 (N.C.Ct.App. Oct. 18, 2011) cert. denied, — N.C.-, 724 S.E.2d 521 (2012).2

9. In June 2012, the Debtor filed a complaint in Mecklenburg County District Court against Ms. Bryan and a prior attorney-in-fact (a son from their former marriage), Mattick v. Bryan, No. 12-CVD-11612 (N.C. Dist.

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Brittany Frances Minogue
D. South Carolina, 2021

Cite This Page — Counsel Stack

Bluebook (online)
496 B.R. 792, 2013 WL 3866497, 2013 Bankr. LEXIS 2986, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mattick-ncwb-2013.