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White v. White

Superior Court of Maine, Cumberland

May 10, 2018

Pamela E. White as Personal, Representative of the Estate of Joel D. White, Plaintiff
v.
Cheryl A. White, Defendant

          ORDER ON PENDING MOTIONS

          NANCY MILLS JUSTICE.

         Before the court are plaintiff Pamela E. White's ex parte motion for approval of attachment and trustee process and defendant Cheryl A. White's motion to dismiss plaintiff's demand for trustee process and motion to dismiss plaintiff's complaint. For the following reasons, plaintiff's motion is granted and defendant's motions are denied.

         Background

         On February 15, 2018, plaintiff filed a complaint alleging one count of conversion and an ex parte motion seeking attachment and trustee process. In support of her motion, plaintiff filed an affidavit of Pamela White along with numerous exhibits. On February 16, 2018, defendant filed a response to plaintiff's ex parte motion. On the same day, plaintiff filed a reply to defendant's opposition. On March 5, 2018, defendant filed an answer, a motion to dismiss plaintiff's complaint, and a motion to dismiss plaintiff's motion for trustee process. In support of her motions, defendant also filed an affidavit of Cheryl White, an affidavit of Guy Converse, a bank statement, an affidavit of a bank teller, and two letters from attorneys. A revised affidavit of Cheryl White was filed on March 7, 2018. On March 26, 2018, plaintiff filed an opposition to both motions. In support of .her oppositions, plaintiff filed an affidavit of Marian Caouette Ryerson and a deposition of Guy Converse.

         1. Plaintiff's Motion for Attachment and Trustee Process

         a. Standard of Review

         A party seeking either attachment or trustee process must show "that it is more likely than not that the plaintiff will recover judgement, including interest and costs, in an amount equal to or greater than the aggregate sum" of the attachment or trustee process. M.R. Civ. P. 4A(c); M.R. Civ. P. 4B(c); Libby O'Brien Kingsley & Champion. LLC v Blanchard, 2015 ME 101, ¶ 5, 121 A.3d 109. Accordingly, the movant must show a greater than 50% chance of successfully recovering a judgment. Richardson v. McConologue, 672 A.2d 599, 600 (Me. 1996). "Motions for attachment must be supported by affidavit evidence." Lindner v. Barry, 2003 ME 91, ¶ 5, 828 A.2d 788 (citing Wilson v. DelPapa, 634 A.2d 1252, 1254 (Me. 1993)). "In making [its] determination, the court assesses the merits of the complaint and the weight and credibility of the supporting affidavits." Porrazzo v. Karofsky, 1998 ME 182, ¶ 7, 714 A.2d 826. The court may enter an ex parte order for attachment only where "there is a clear danger that the defendant if notified in advance .. .will remove [the property] from the state or will conceal it or will otherwise make it unavailable, ... or there is immediate danger that the defendant will damage or destroy the property." M.R. Civ. P. 4A(g); see also M.R. Civ. P. 4B(i).

         b. Analysis

         i. Whether Plaintiff is More Likely Than Not to Recover Judgment

         Plaintiff seeks an ex parte order of attachment and trustee process in the amount of $199, 300. (P. White Aff. ¶ 29.) In her complaint, plaintiff alleges one count of conversion. To prevail on her conversion claim plaintiff must establish: (1) that she has a property interest in the property; (2) that she had a right to possession of the property at the time of the alleged conversion; and (3) that she made a demand for the return of the property that was denied by the defendant. Estate of Barron v. Shapiro & Morley. LLC, 2017 ME 51.¶ 14, 157 A.3d 769.

         Plaintiff supports her motion with an affidavit and attached exhibits that allege the following facts. Plaintiff is the personal representative of the estate of her father, Joel D. White, Sr. (P. White Aff. ¶¶ 8, 12.) Prior to his death, Mr. White provided floor plan financing to Good Guys Cars & Trucks (GGC&T). (P. White Aff. ¶ 13.) Funds paid to GGC&T and repaid to Mr. White were withdrawn and deposited into a bank account issued solely in Mr. White's name. (P. White Aff. ¶¶ 15-17; Pl.'s Ex. B.) At the time of his death, GGC&T owed Mr. White $136, 300 in principal for the financing. (P. White Aff. ¶¶ 15, 26; Pl.'s Ex.'s A, B.) GGC&T owed at least $59, 600 in origination fees as of June 2017. (P. White Aff. ¶ 22; Pl.'s Ex. E.)

         After Mr. White's death, defendant received $127, 637.78 from GGC&T in return for floor plan financing provided to GGC&T by the decedent. (P. White Aff. ¶¶ 23, 26.) Defendant has directed GGC&T to make all payments to her. (P. White Aff. ¶ 21.) Defendant admits that the amounts owed pursuant to the financing arrangement are assets of the estate. (P. White Aff. ¶ 18; Pl.'s Ex. C.) After Mr. White's death, defendant also spent $15, 140.52 from a bank account owned solely by the decedent. (P. White Aff. ¶¶ 20, 26.) Plaintiff has made a demand for the return of money owed pursuant to the financing arrangement and which was withdrawn from the decedent's bank account. (P. White Aff. ¶ 27.) The demand has been ignored. (P. White Aff. ¶ 27.)

         In her opposition to plaintiff's motion for attachment, defendant argues that the floor plan financing is not an estate asset. To support her argument, defendant has submitted an affidavit asserting that the funds for the floor plan financing were obtained from an investment brokerage account she shared with Mr. White, her husband. (Rev. C. White Aff. ¶¶ 1, 9.) Upon repayment, funds would be deposited back into the joint brokerage account. (Rev. C. White. Aff. ¶ 10.) According to defendant, her characterization of the floor plan financing arrangement as an asset of the estate was only a proposal with regard to an amount she might give to Mr. White's children. (Rev. C. White. Aff. J 18.) Other than providing funds from her jointly shared investment account, defendant did not become involved in the financing transactions until after her husband's death. (Rev. C. White Aff. ¶¶ 7, 14, 44; Converse Aff. ¶ 10, 14.) Defendant admits that the funds for the floor plan financing were paid out of her husband's bank account. (C. White Aff. ¶ 38.)

         After reviewing the parties competing affidavits the court finds that it is more likely than not that the floor plan financing is an asset of the estate. In her affidavits, defendant avers that she was not involved in the daily business of the enterprise until after her husband's death. Both parties agree and an exhibit shows that financing was paid for directly from Mr. White's bank account. Documents reflecting amounts owed pursuant to the floor plan transactions are in Mr. White's name. ...


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