Davis v. Millenium Development Group et al

UNITED STATES BANKRUPTCY COURT
EASTERN DISTRICT OF NORTH CAROLINA
RALEIGH DIVISION
IN RE:
HESTER ALICE DAVIS
DEBTOR
CASE NO.
04-03619-5-ATS
HESTER ALICE DAVIS
Plaintiff
v.
MILLENNIUM DEVELOPMENT GROUP, LLC
and LEWIS A. THOMPSON, III, TRUSTEE
Defendants.
ADVERSARY PROCEEDING NO.
S-05-00076-5-AP
SECOND AMENDED JUDGMENT
The trial of this adversary proceeding brought by the chapter
13 	debtor, 	Hester 	Alice 	Davis, 	against 	defendant 	Millennium
Development Group, LLC for claims of breach of contract, breach of
express 	and 	implied 	warranties, 	violations 	of 	the 	North 	Carolina
Manufactured 	Home 	Warranties 	Act, 	unfair 	and 	deceptive 	trade
practices, 	misrepresentation, 	negligence, 	and 	violation 	of 	the
North 	Carolina 	Fair 	Debt 	Collection 	Practices 	Act, 	and 	against
defendant Lewis A. Thompson, III for breach of his fiduciary duty
as 	trustee 	under 	a 	deed 	of 	trust, 	was 	held 	in 	Raleigh, 	North
SO ORDERED.
SIGNED this 11 day of May, 2006.
________________________________________
A. Thomas Small
United States Bankruptcy Judge
____________________________________________________________
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Carolina on February 9, 10, and 13, 2006. 	A Memorandum Opinion and
Order Denying Motion for Relief from Stay, Order Denying Objection
to 	Confirmation 	of 	Plan 	and 	Order 	Allowing 	Objection 	to 	Claim
setting forth the court's findings of fact and conclusions of law
was 	entered 	on 	March 	31, 	2006, 	and 	a 	further 	Memorandum 	Opinion
regarding the plaintiff's attorney's fees was entered on April 12,
2006. 	Based 	on 	the 	findings 	of 	fact 	and 	conclusions 	of 	law 	set
forth in the Memorandum Opinions, a judgment was entered on April
12, 2006. 	That judgment was amended on April 20, 2006, to correct
an 	omission. 	The 	caption 	of 	the 	amended 	judgment 	is 	amended 	by
this 	second 	amended 	judgment 	to 	reflect 	that 	Lewis 	A. 	Thompson,
III, is a defendant in his capacity as Trustee. 	Accordingly, based
on the court's findings of fact and conclusions of law,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiff,
Hester Alice Davis, recover the sum of $5,800, trebled pursuant to
North 	Carolina 	General 	Statute 	§ 	75-16, 	for 	a 	total 	amount 	of
$17,400 from the defendant, Millennium Development Group, LLC, plus
interest at the rate of 4.85% from April 12, 2006, until paid; and
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the plaintiff,
Hester 	Alice 	Davis, 	recover 	the 	sum 	of 	$2,000, 	pursuant 	to 	North
Carolina 	General 	Statute 	§ 	75-56, 	from 	the 	defendant, 	Millennium
Development Group, LLC, plus interest at the rate of 4.85% from the
date of this amended judgment until paid; and
IT 	IS 	FURTHER 	ORDERED, 	ADJUDGED 	AND 	DECREED 	that 	the
plaintiff, 	Hester 	Alice 	Davis, 	recover 	the 	sum 	of 	$7,000 	in
attorney's fees from the defendant, Millennium Development Group,
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LLC, plus interest at the rate of 4.85% from April 12, 2006, until
paid; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, as provided
in the court's order of March 31, 2006, the deed of trust in favor
of 	Millennium 	Development 	Group, 	LLC, 	recorded 	with 	the 	Warren
County Register of Deeds at Book 744 and Page 0513, is VOID; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that no later than
May 30, 2006, the defendant, Millennium Development Group, LLC, may
remove the modular home located on the property at 956 NC Highway
43, 	Macon, 	North 	Carolina, 	provided 	that 	it 	first 	pays 	to 	the
plaintiff, 	Hester 	Alice 	Davis, 	the 	damages 	and 	attorney's 	fees
awarded in this judgment, and agrees to indemnify Ms. Davis for any
harm to the property that may result from the removal; and
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that if Millennium
removes the mobile home, Ms. Davis shall have the option of having
Millennium 	leave 	the 	concrete 	foundation 	or 	of 	having 	Millennium
remove 	the 	concrete 	foundation 	and 	return 	the 	property 	to 	the
condition it was in before the home was delivered in October 2003;
and
IT 	IS 	FURTHER 	ORDERED, 	ADJUDGED 	AND 	DECREED 	that 	the
plaintiff, 	Hester 	Alice 	Davis, 	recover 	the 	sum 	of 	$12,500 	(which
includes 	the 	attorney's 	fees 	expended 	by 	Ms. 	Davis 	in 	connection
with 	her 	lawsuit 	against 	Millennium 	Development 	Group, 	LLC) 	from
the defendant, Lewis A. Thompson, III, plus interest at the rate of
4.85% from April 12, 2006, until paid; and
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IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the liability
of 	defendants, 	Millennium 	Development 	Group, 	LLC 	and 	Lewis 	A.
Thompson, III, is joint and several.
END OF DOCUMENT
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