Monday, November 2, 2015
Attorney alleges ‘pattern & practice’ of fraud in Winston-Salem clerk’s office
The attorney suing the Forsyth County Clerk of Superior Court Office, an estate guardian, and others over alleged “acts of fraud” involving the loss of over $1.4 million in assets belonging to a now deceased African-American retired nurse, claimed in court papers a year ago that he has evidence that this wasn’t just a one-time occurrence, but rather, “a pattern and practice of fraudulent activity by the Clerk’s Office…,” and that specific guardian.
Even though The Chronicle is focusing on allegations centered at the Forsyth County Clerk’s Office, the allegations of fraud in the quasi-judicial process of determining legal guardians for incapacitated individuals could have statewide implications if they’re being replicated in other counties without investigation.
Reginald D. Alston, the attorney representing the estate of the late Mary Ellen Brannon Thompson (legally known as the “ward”), made the allegation in the lawsuit he filed last week (as exclusively reported by The Chronicle) against the Forsyth County Clerk of Superior Court Office, which administers guardianships; and attorney Bryan Thompson (no relation to Mary Thompson), the estate guardian alleged to have had an official in the Forsyth County Clerk’s Office on May 1, 2007, “… sign a guardianship appointment in his favor…. without giving notice to Mary Thompson [while she was living] and her next of kin…” as required by state statute.
Alston also made the allegation in several motions he filed in the case dating back to March 2014.
As the Clerk appointed estate guardian, attorney Thompson was responsible for managing the ward’s over $1.4 million in liquid and real estate assets. But in the Oct. 20 lawsuit, attorney Alston, representing Calvin Brannon – Mary Thompson’s brother and the estate administrator representing next of kin – maintained that attorney Thompson had no legal right to oversee the estate because there was never any evidence of the ward’s incompetence presented (which is required in order for an estate guardian to be appointed by the Clerk in North Carolina), a key element in determining the legal reason for a guardian.
Without that evidence, attorney Thompson should never have been appointed, the lawsuit contends. But in addition, the orders issued by the Clerk’s Office declaring Mary Thompson as incompetent, and attorney Thompson as her legal estate guardian, were never officially filed into the court record via time stamp, as legally required.
“The order is devoid of any stamp-file or other marking necessary to indicate a filing date, and therefore it was not entered,” ruled the N.C. Court of Appeals in a February 4, 2014, decision.
And in addition, as attorney Alston contends in the lawsuit, attorney Thompson’s May 1, 2007, appointment as estate guardian came before the Clerk’s May 3, 2007, Order of Incompetence, which could not stand given that the ward had to be legally determined incompetent first before any guardian could be assigned.
Forsyth County Clerk of Superior Court Susan Frye apparently took that February 2014 appellate court ruling to heart. On April 9, 2014, she issued a “Findings of Fact” in the Mary Ellen Thompson case, acknowledging per the appellate decision that “… the orders were not properly entered…,” thus creating “… an inadvertent defect…”
However Frye, who was re-elected to her second-term in November 2014, decided she could deal with that 7-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 makes a mistake in a previous order, it can correct it subsequently.
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.
But the ward’s estate attorney, Reginald Alston, apparently already aware that Clerk Frye would attempt to dodge the appellate court findings, opposed Frye’s coming order in his April 1, 2014, motion to Superior Court, writing, “Counsel objects to the nunc pro tunc filing of the May 3, 2007 Order of Incompetence in this matter as an attempt to legitimize the fraudulent actions of Bryan Thompson and [former assistant Clerk] Theresa Hinshaw, and protects the interests of the Court as opposed to those of Mary Ellen Brannon Thompson.”
Hinshaw is the official in the Clerk’s Office in 2007 who attorney Alston alleges “colluded” with attorney Thompson in the issuing both defective orders in the Mary Thompson case.
Clerk Frye’s order was eventually appealed and subsequently found to be procedurally improper by a Superior Court judge. It was sent back for a hearing in the Clerk’s office.
In that same April 1, 2014, motion by Alston, he stated that, “… counsel has previously raised the issue of fraud and collusion by Clerk Theresa Hinshaw and Bryan Thompson in regards to this special proceeding and estate and other similar cases in Forsyth County.”
Alston further said in his motion that Clerk Frye “refused to accept the documents marked for trial as Exhibit H and consisting of a listing of [over 40] Estate matters in which Bryan Thompson was handling the estate.”
Attorney Alston went on to state that “… as part of my investigation of the alleged fraud, I pulled the Estate files for several individuals whose estates had been handled by Bryan Thompson…” Each case had a special proceeding regarding an estate where Bryan Thompson was appointed, Alston continued, and, “That none of the cases had a filed-stamped order of incompetence nor filed-stamped order appointing anyone guardian of the Estate or Person.”
Alston went on to list four cases by file numbers that he personally reviewed to document his allegation, and then stated a reason he believed the pattern even existed.
“…[C]ounsel believes the failure to file stamp the Orders was utilized as a means to prevent removal of the guardians and facilitate Bryan Thompson … to fraudulently maintain the position of guardian without properly filed Orders authorizing [his] actions.”
In a previous motion before the court dated March 31, 2014, attorney Alston was blunt, stating, “That the issuance of letters to Brian Thompson by [Clerk] Theresa Hinshaw without a properly filed Order of Incompetence was not an error or unique circumstance, but an act of fraud that has been repeated in other special proceedings in Forsyth County and evidences a pattern and practice of fraudulent activity by the Clerk’s Office.”
Months later, in October 2014, Mary Ellen Thompson, who had been in ill health, died. But even though it had been clearly established before her death that Bryan Thompson’s estate guardianship was in controversy, no relief was forthcoming.
“Between May 1, 2007 and October 2, 2014, Bryan Thompson did not return the assets that he took by fraud from Mary Thompson valued at $1, 486, 415.49,” attorney Alston alleges in the estate’s Oct. 20 lawsuit. The suit seeks compensatory and punitive damages from, “… the Clerk’s bond in the amount of all property value that [the ward] lost due to Bryan Thompson’s acts and the regulatory failures of the Clerk of Courts in an amount that exceeds $25,000.”
The lawsuit also seeks compensatory and punitive damages from 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.
Finally, the suit seeks all of Mary Thompson’s assets returned to the estate, and to hold attorney Bryan Thompson liable.
Defendants had not responded to the Mary Thompson estate lawsuit by press time.
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Attorney alleges ‘pattern & practice’ of fraud in Winston-Salem clerk’s office