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HomeMy WebLinkAbout06-19-08 (2)IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT IN RE: ROBERT G. TRAVER O.C. No. 2008-00564 N c~ ~T o -,, ~ c_. '-;-,>c~ --_ - ~ _. -~ ~ and -~ ~ ~ ~ LOIS J. TRAVER _r~ ~~ :~~ ~- .rte ANSWER AND NEW MATTER TO PETITION FOR REMOVAL OF AGENTS Al~D APPOINTMENT OF A TRUSTEE TO FACILITATE THE SALE FO REAL PROPERTY Respondent, Robert G. Traver and Lois J. Traver, by and through their undersigned counsel, Gates Halbruner & Hatch, PC, file this Answer to the Petition of ManorCare and respond as follows: Admitted upon information and belief, and strict proof is demanded. 2. Admitted. 3. Admitted. 4. It is admitted that ManorCare has provided skilled nursing services to Mr. Traver. It is denied that Mr. Traver is indebted to ManorCare as he has applied for Medical Assistance which will reimburse ManorCare for some or all of the incurred expenses. 5. It is admitted that ManorCare has provided skilled nursing services to Mrs. Traver. The exact amount of the outstanding obligation is denied and strict proof of which is demanded. 6. Denied and strict proof of which is demanded. 7. Admitted. 8. Admitted in part and denied in part. See answer to paragraphs 4 and 5. 9. It is admitted that a significant amount of time after Mr. Traver's admission to ManorCare's skilled nursing care facility, Mr. Traver became insolvent. The remainder of this paragraph is denied and strict proof of which is demanded. 10. Admitted. By way of further answer, ManorCare filed a blank Application for Medical Assistance, Form PA-600 ostensibly on behalf of Mr. Traver, and at approximately the same time, Anna Messimer, as Agent for her father, filed an Application for Medical Assistance which was properly filled-out and completed. 1 ;. r _~ _:~ - :~, . .- } - , -: ~~. ~: C~1 11. Admitted. By way of further answer, the Cumberland County Assistance Office denied the blank Medical Assistance Application which ManorCare previously filed ostensibly on behalf of Mr. Traver. 12. Denied. On April 10, 2008, the Cumberland County Assistance Office denied the Medical Assistance Application submitted by Anna Messimer, as Agent for Robert Traver. The Application was not denied due to a lack of verified information. The Application was denied because Robert Traver's son, Ronald Traver had exclusive control over two (2) Bank of Hanover checking accounts and refused to submit the checking account information to the Cumberland County Assistance Office. These two checking accounts were presumably used by Ronald Traver to operate the 200-plus acre farm and the checking account information was necessary to prove to the Cumberland County Assistance Office that the accounts were actually farm accounts, and to verify that no funds were transfer (gifted) to the Traver children from the farm accounts. Without the information, Anna Messimer, as Agent and Applicant for Robert Traver, could not prove that the farm should be an exempt asset for Medical Assistance purposes. 13. Admitted in part and denied in part. It is admitted that Lois Traver was admitted to ManorCare skilled nursing facility and that she spent all of her resources, except for the farm property, on ManorCare nursing costs. The remainder of the paragraph is denied, and strict proof is demanded. 14. Admitted. By way of further answer, ManorCare filed a blank Application for Medical Assistance, Form PA-600, ostensibly on behalf of Lois Traver. ManorCare's Medical Assistance Application was filed without the knowledge or consent of the Travers or their Agent. For estate planning and asset protection reasons, Anna Messimer, as Agent for Robert and Lois Traver, was advised not to submit an Application for Medical Assistance for Lois Traver. However, as a result of Ronald Traver's failure to submit the require checking account information, the Travers' estate plan did not have the efficacy as original thought. 15. Admitted. By way of further answer, the Cumberland County Assistance Office denied the blank Medical Assistance Application which ManorCare previously filed ostensibly on behalf of Mrs. Traver. This Application was filed without the knowledge or consent of the Travers' or their Agent, and was contrary to the best interests of the Travers and their estate planning. Based on the Travers' assets and estate planning at the time of submission, the Medical Assistance Application which ManorCare filed ostensibly on behalf of Mrs. Traver was futile and was proven as such. 16. Denied. This paragraph is pure speculation and does not require a response. 17. Denied as a conclusion of law, and strict proof is demanded. 18. Admitted. Inter-spousal transfers of assets are exempt transfers and have no impact on Medical Assistance eligibility. Had Robert Traver's Medical Assistance Application been approved, this inter-spousal transfer would have been required by the Cumberland County Assistance Office. 2 19. Denied as a conclusion of law, and strict proof is demanded. 20. Denied as a conclusion of law, and strict proof is demanded. By way of further answer, the farm property would be exempt as the "community spouse's" residence and as a farm, if Ronald Traver had submitted the necessary checking account information. The Travers' did not need to rely on the cited regulation section 178.51(a). 21. Denied as a conclusion of law, and strict proof is demanded. By way of further answer, the farm property in question is currently under an Agreement of Sale. 22. Denied as a conclusion of law, and strict proof is demanded. By way of further answer, the farm property in question is currently under an Agreement of Sale. 23. Denied as a conclusion of law, and strict proof is demanded. By way of further answer, the farm property in question is currently under an Agreement of Sale. 24. Denied as a conclusion of law, and strict proof is demanded. 25. Denied as a conclusion of law, and strict proof is demanded. By way of further answer, Anna Messimer signed a promissory note and a mortgage in favor of ManorCare to protect ManorCare's right to full and adequate payment for the nursing home care it was providing to the Travers. This mortgage was granted on April 9, 2008, and then due to recording difficulties, was resigned on May 15, 2008. Anna Messimer never disputed ManorCare's right to be paid, and granted the mortgage in recognition of this fact. ManorCare has no justification to file this Petition for Removal without the slightest effort on its part to discover the status of the farm sale. 26. Admitted. 27. Admitted. 28. Admitted upon information and belief, and strict proof is demanded. 29. Denied. By way of further answer, Anna Messimer has taken steps to ensure that Ronald Traver is not acting under a revoked Power of Attorney. Ronald Traver was present at the Traver family meeting on November 16, 2005 when all estate planning documents were signed, giving Ronald Traver actual knowledge that his parents had signed General Durable Powers of Attorney naming Anna Messimer as primary Agent for Lois Traver and as primary Co-Agent (along with Lois Traver) for Robert Traver. 30. Denied. The confusion caused by ManorCare filing blank applications and ManorCare's subsequent and continuous meddling and interference and Ronald Traver's failure to submit the checking account information have caused the continued denial of Medical Assistance benefits and corresponding harm to the Travers. 3 31. Denied as factual and legal conclusions, and strict proof is demanded. By way of further answer, the farm property in question is currently under an Agreement of Sale, and ManorCare was adequately protected and guaranteed payment by the Note and Mortgage signed in April, 2008. NEW MATTER 32. At ManorCare's insistence Anna Messimer signed a promissory note and mortgage for the benefit of ManorCare on May 15, 2008, which guaranteed full payment to ManorCare of its nursing care services received (and being received currently) by Robert and Lois Traver. 33. At ManorCare's request Anna Messimer, through her counsel, kept ManorCare notified of the progress of the sale of the real estate. 34. By email dated May 14, 2008, Anna Messimer's counsel, Sarah E. McCarroll, Esq., informed ManorCare's counsel that a sales agreement was presented by a potential buyer and was currently being negotiated. 35. The Travers, through their Agent, Anna Messimer, entered into an Agreement for Purchase and Sale of Real Estate on June 3, 2008. 36. The timing of ManorCare's Petition for Removal is an effort to disrupt the sales process so ManorCare itself can either facilitate the sale of the property to an amicable party at potentially a less fair market value, or to foreclose on the property and obtain it for ManorCare's own use. 37. Alternatively, the purpose of this Petition is to pressure the Travers, and their Agent Anna Messimer, into a quick sale for less than fair market value solely for the financial benefit of ManorCare. 38. After granting to ManorCare a promissory note and mortgage on the property ONLY NINE DAYS EARLIER, this Petition is needless and vexatious as ManorCare's interests are protected in full. 39. When the Promissory Note and Mortgage were signed and filed, ManorCare should have known that it would take more than nine days to market and sell a 200-plus acre farm in a soft economy and a well known national housing crisis. 40. The allegations that Anna Messimer is not acting in the best interests of her parents is outrageous when ManorCare is threatening that the Travers maybe "discharged from the skilled nursing facility in which they are currently receiving much needed skilled nursing 4 services." In paragraph 31 of ManorCare's Petition, ManorCare threatens to discharge Robert and Lois Traver from their facility. 41. ManorCare's actions in filing the Petition are solely for its own financial benefit and a clear abuse of process. 42. ManorCare's Petition places Anna Messimer, as the Travers' Agent, in an untenable position of having to defend herself in an otherwise legitimate real estate sale, while having to protect the confidentiality of the buyer and the agreement of sale, which the Buyer requested. 43. Similarly, ManorCare's Petition places Anna Messimer, as the Travers' Agent, in a position of having her General Durable Power of Attorney called into question, and if this challenge was disclosed to the buyer, the buyer might potentially cancel the agreement of sale and walk away from the transaction, all to the detriment of the Travers. Wherefore, Anna Messimer, as Agent for the Travers, respectfully requests this Court deny ManorCare's Petition and grant sanctions against ManorCare for abuse of the legal process. Respectfully Lowel R. Gates, Esquire Atto ey ID No. 46779 Gate , Halbruner & Hatch, P.C. 101 Mumma Road, Suite 100 L oyne, PA 17043 Phone: (717) 731-9600 D/~ ~q~l~O 5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT IN RE: , ROBERT G. TRAVER O.C. No. 2008-00564 And , LOIS J. TRAVER AFFIDAVIT OF ANNA M. MESSIMER ATTORNEY-IN-FACT FOR LOIS J. TRAVER AND ROBERT G. TRAVER COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND I, Anna M. Messimer, am Attorney-in-Fact ("Agent") on behalf of my father, Robert G. Traver, and my mother, Lois J. Traver, and being duly sworn according to law, hereby depose and say as follows: 1. On May 15, 2008, I executed a note and mortgage in favor of ManorCare on behalf of my parents to secure the payment of the outstanding balance of my parents' nursing home care. The mortgage was secured against my parents' family home on Pinetown Road, Fairview Township, York County. 2. On June 3, 2008, I executed an Agreement for Purchase and Sale of Real Estate, the sale price of which will satisfy the mortgage and note and all amounts owing to ManorCare. TU ~ a M. Messimer, Att rney-in-Fact r Robert G. Traver and Lois J. Traver Sworn to and subscribed before me this ~ ~ ~ day of June, 2008 Notary Public COMMONWEALTH OF PENNSYLVANIA Notada~ Seal Y~ctoda M. Rankin, Notary Public ~° , Gxnbsrland ~. ~, "eember °j~++re~~~van~a 4ssociation of Nota~lea IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: ROBERT G. TRAVER No. 2008-00564 and , LOIS TRAVER Civil Action CERTIFICATE OF SERVICE I, Sarah E. McCarroll, hereby certify that a true and correct copy of the foregoing Answer and New Matter was served on the following this day by first class United States postal service, postage pre-paid: Kirk Sohonage, Esquire 417 Walnut Street 4th Floor Harrisburg, PA 17101 Edward Seeber 555 Gettysburg Pike Suite C-400 Mechanicsburg, PA 17055 ,~~~ Sarah E. McCarroll PA 91102 Gates, Halbruner & Hatch, P.C. 1013 Mumma Road, Suite 100 Lemoyne, PA 17043 717.731.9600 717.731.9627 s.mccarroll(a~ ~ateslawfirm.com