Cargill, Incorporated v. WDS, Inc. et al

Filing 371

ORDER, ADJUDGES, AND DECREES the Debtor has waived his right to have statutory exemptions designated as to this execution and designates no property as exempt. N.C. Gen. Stat. § 1C-1603(e)(9). Signed by Chief Judge Frank D. Whitney on 4/11/18. (clc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:16-cv-00848-FDW-DSC
CARGILL, INC., and CARGILL MEAT )
SOLUTIONS, CORP.,
)
)
Plaintiffs,
)
)
vs.
)
)
WDS, INC., JENNIFER MAIER, and )
BRIAN EWERT,
)
)
Defendants.
)
)

ORDER

THIS MATTER is before the Court on Plaintiffs and Judgment Creditors Cargill, Inc. and
Cargill Meat Solutions, Corp.’s (the “Judgment Creditors”) Objection to Notice to Claim Exempt
Property (the “Objection”) (Doc. No. 355) filed by Debtor and Defendant Brian Ewert (the
“Debtor”) (Doc. No. 352). Having reviewed the parties’ submissions, heard the arguments of
counsel at a hearing on April 11, 2018, and considered the relevant legal authority, the Court
GRANTS the Objection and DENIES the Debtor’s “Notice to Claim Exempt Property (Statutory
Exemptions)” (Doc. No. 352). The Court finds and concludes as follows:
1. After judgment was entered, the Judgment Creditors filed a “Request for Clerk to Issue
Notice to Debtor of Right to Have Exemptions Designated” as to Debtor Brian Ewert
on February 7, 2018 (Doc. No. 331).
2. The Clerk issued the “Notice of Right to Have Exemptions Designated” (the “Notice”)
on February 8, 2018 (Doc. No. 332), and the Judgment Creditors served the Debtor on
February 12, 2018 with a copy of the Notice. (Doc. No. 339).

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3. On March 2, 2018, the Debtor moved to designate exempt property by filing a “Notice
to Claim Exempt Property (Statutory Exemptions)” (Doc. No. 352).
4. The Debtor did not file with the Court a list of assets or provide their location when he
filed his motion to designate exempt property or at any time since.
5. On March 12, 2018, the Judgment Creditors timely objected to the motion to designate
exempt property, including for the Debtor’s failure to file a list of assets. (Doc. No.
355). Accordingly, the Judgment Creditors requested that the Court deny the Debtor’s
motion to designate exempt property.
6. After the Debtor was ordered to file a response, the Debtor filed a response to the
Judgment Creditors’ Objection on April 9, 2018.
7. The Court held a hearing on the Objection on April 11, 2018.
8. The Debtor has failed to comply with the statutory requirement for timely moving for
statutory exemptions under N.C. Gen. Stat. § 1C-1603 by failing to file a listing of
assets and their location. N.C. Gen. Stat § 1C-1603(c), (d), (e).
9. By failing to timely move for statutory exemptions with a list of assets pursuant to N.C.
Gen. Stat. § 1C-1603, the Debtor has waived his right to designate statutory
exemptions. N.C. Gen. Stat. §§ 1C-1601(c), 1C-1603(e)(2).
10. The Debtor has had sufficient time to address the Judgment Creditors’ Objection, has
failed to do so, and gives the Court no cause to believe that an extension of time would
result in compliance.

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THEREFORE, based on the Court’s findings, the Court ORDERS, ADJUDGES, AND
DECREES the Debtor has waived his right to have statutory exemptions designated as to this
execution and designates no property as exempt. N.C. Gen. Stat. § 1C-1603(e)(9).1
IT IS SO ORDERED.

Signed: April 11, 2018

This Order in no way impacts the Debtor’s right to claim statutory exemptions on subsequent executions or
constitutional exemptions. Household Finance Corp. v. Ellis, 419 S.E.2d 592 (N.C. Ct. App. 1992). Further, it does
not impact the Debtor’s right to move for modification of this Order. See N.C. Gen. Stat. § 1C-1603(g).
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